<– Use the green share button to send this article to your customers
What I’m not sure about is my client’s obligations to inform and consult their staff. Do they have to arrange for the election of representatives for this? There are only 15 employees, and my client would prefer just to speak to them all. Can they do this?
A. When the whole or part of an employers’ business or undertaking is sold or transferred as a going concern to another employer, the TUPE regulations are likely to apply. The seller of the business/undertaking, i.e. your client, is referred to as the ‘transferor’ (old employer), while the recipient of the business/undertaking is known as the ‘transferee’ (new employer).
If the sale of the business is confirmed, as the transferor, your client will have to consult with their employees and/or their elected representatives – that is, until the 1 July, when the TUPE rules on employee representatives change.
For transfers that take effect on or after 1 July 2024, the requirement to consult with elected representatives, where none already exist, will be removed for:
• Transfers of any size for businesses with fewer than 50 employees; and
• Employers of any size involved in a transfer that affects fewer than 10 employees.
What this means for your client is that they don’t have to get their employees to elect representatives, but they can still do so if they want to. If there are no employee representatives already in place with a remit that includes consultation under TUPE, and no trade union representatives, your client can bypass the election of representatives and consult directly with their staff.
Under TUPE, your client will need share the following information with their employees:
• the fact that the transfer is to take place, the date or proposed date of the transfer and the reasons for it
• the legal, economic and social implications of the transfer
• any measures that are envisaged in connection with the transfer
‘Measures’ is not defined in law, but includes redundancies, changes in working practices (such as shift changes, for example) and reorganisations. In can also include changes to contractual terms, even pay dates, where the change impacts the employees. They will need to speak to the buyer (or transferee) to find out what these measures might be.
This consultation must be genuine and meaningful, but it doesn’t require your client to get agreement from their employees. They will however need to consider any representations made and provide responses to them, with reasons if rejecting them.
This information should be provided in writing, and it’s recommended that any responses given during the consultation are also provided in writing also, so your client can show that they have complied with TUPE.
