Regulation 13 of TUPE requires that both transferor and transferee must inform and, if necessary, consult appropriate representatives of its own employees affected by the transfer in advance of the transfer date. To help a transferor discharge its obligations, under regulation 13(4) a transferee must notify the transferor of any measures it envisages it may take in relation to any employee who may transfer to it.
In Allen and Ors v Morrisons Facilities Services Ltd, the Employment Appeal Tribunal has confirmed two important points of law.
Firstly, a transferee has no obligation to provide information about the measures it proposes to the employees of the transferor directly. Under TUPE, it is the transferor’s duty to pass on the information it receives from the transferee. Transferors must therefore be careful to fully and properly pass on the information it has received from the transferee, whether in writing or orally.
Secondly, an employee can only pursue a complaint that there has been a failure to inform and consult under TUPE against the party who was their employer at the date of the alleged failure.
If the transferee has failed to comply with its obligation to supply a transferor information under regulation 13(4), the transferor’s employees must bring a claim against the transferor. The employees have no stand-alone right to bring a claim against the transferee. The transferee can only be made a party to these proceedings if the transferor serves notice to do so.
It is worth adding that this type of claim can usually only be brought by the appropriate representatives of the employees, rather than the employees themselves - unless the representatives were not properly appointed.
Whilst this decision arguably covers no new ground, it emphasises the importance of contractual provisions which require transferees to fully co-operate in any pre transfer information and consultation exercise and the value of an indemnity in favour of a transferor where it fails to do so.