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23-04-2015

The EAT had to consider the correct construction of Regulations 13 and 15 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). In particular can a claim be brought against a transferee by the transferring employees for its failure to provide the Transferor with information to enable the Transferor to comply with their obligations to inform and consult?

This gets complicated. In summary...

Reg 13 of TUPE says that the employer of affected employees must inform and consult with employee representatives.

Reg 13 (4) states that the transferee (the proposed new employer) must tell the transferor (the current employer) of any proposed measures it intends to take in relation to the transferring employees. ‘Measures’ is not defined but it includes matters like propose changes to term, redundancies etc.

Reg 15 says that a complaint can be made to an employment tribunal where an employer has failed to inform and consult.

Reg 15 (5) a transferor may join a transferee into a claim against the transferor where the transferee failed to provide information so as to allow the transferor to properly consult.

The Employment Tribunal determined that the transferring former employees of the transferor could not pursue claims against the transferee for breach of TUPE Regulation 13(4). The employees appealed.

The EAT dismissed the appeal. TUPE Regulation 13(4) does not impose an obligation on a transferee to provide information to employees of the transferor only to the Transferor. A complaint to an Employment Tribunal under Regulation 15 can only be brought by an employee against his employer. The claimants' employer at the time of the alleged breach of Regulation 13(4) was the transferor not the transferee.

The only route for employees of the transferor to obtain compensation from the transferee for breach of their obligations to a transferor under Regulation 13(4) was to pursue a claim against the transferor and for the transferor to give notice to and join the transferee as a party to the proceedings under Regulation 15(5). The employees had no independent cause of action against the Transferee.

Does it matter?

The claimants, in this case, had settled or withdrew their claims against all the transferors so were left to fall through a hole in relation to their claims against the transferee.

See Allen and Others v Morrisons Facilities Services Limited.

Sarah Rushton (srushton@moonbeever.com)

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information.

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