How your employer should inform and consult you during TUPE
Your current employer must inform staff representatives (trade union or employee representatives) about the transfer. In some cases, your employer must also consult staff representatives on any changes they are proposing to make that will affect employees.
Your staff representatives will represent you during the consultation process. This process is a chance for your employer to explain the changes they're planning and why the transfer is happening.
What inform and consult means for you
‘Inform’ is when your current employer tells you the facts about the transfer. They must give you this information before the transfer.
'Consult' is when your current employer asks for and considers your feedback on the changes to working practices (‘measures’) that the transfer will bring, before making a decision.
The consultation will not discuss the fact that the transfer is happening. But it could include changes like:
- location of work
- the date you get paid
- hours of work
How this will affect you
If you’re transferring from your current employer to a new employer, your employer must:
- tell you or your representatives that the transfer is happening
- give you or your representatives a copy of the 'measures letter' explaining any changes the new employer is planning to make
If you stay employed with your current employer but other staff transfer in or out, your employer should:
- tell you or your representatives that the transfer is happening
- consult with you or your representatives on any changes to working practices
Who your employer should inform and consult with
Your employer must consult with trade union or employee representatives about the transfer and which staff it will affect.
If there are no trade union or employee representatives, your employer should arrange an election to elect employee representatives to consult with.
In smaller organisations (fewer than 10 employees), your employer should consult with you directly unless there is a recognised trade union.
Your employer does not have to make the changes you and your representatives suggest.
Before they make a final decision, they do need to show that they’ve:
- discussed any changes with you
- listened to your suggestions and fully considered them
- tried to reach agreement
If they cannot come to an agreement, your employer should provide you with the business reasons for rejecting your suggestions and explain why in writing.
It is good practice for employers to keep all affected employees updated about the transfer, even if there are representatives.
The information you should receive
Your current employer must let you or your representatives know in writing:
- that the transfer is happening, when it will happen and why
- how the transfer will affect you – for example, if there’s a change in location, working hours, job descriptions, salary payment dates or any risk of redundancies
- how they plan to carry out the transfer
- whether there’ll be any reorganisation
- the number of agency workers employed, the departments they are working in and the type of work they are doing, if agency workers are used
If you are transferring to a new employer, your current employer must inform you of any changes the new employer is planning to make.
How you’ll be represented
Your trade union or employee representatives, if you have any, will represent you in the consultation with your current employer.
They’ll do this by:
- talking to you about the employer’s transfer proposals and sharing information
- asking for your views and any questions you may have
- talking to other representatives and working out a collective staff response
- meeting with your employer to give feedback on the staff response
- taking part in open discussions to try to solve problems with a view to reaching an agreement
- keeping you informed about the discussions
Electing or becoming employee representatives
If there is no recognised trade union, you may need to elect employee representatives. You have the right to vote for employee representatives or stand for election yourself if you’re affected by the transfer.
Your employer should make sure that:
- all employees who stand for election are affected by the transfer when the election takes place
- affected employees are not stopped from standing for election
- affected employees are given the right to vote for employee representatives
- affected employees can vote for as many candidates as there are representatives to be elected in their part of the organisation
- votes can be made secretly and counted accurately
- sufficient employee representatives are elected to represent the interests of all affected employees
Rights of employee representatives
During the transfer, employee representatives have the right to:
- a reasonable amount of paid time off for representation duties
- reasonable access to affected employees and workplace facilities
They may also be given paid time off for TUPE training.
They cannot be dismissed or treated unfairly because they’re a trade union or employee representative.
When you should be informed and consulted
There is no fixed time period for informing and consulting you. By law, your employer must give your representatives this information long enough before the transfer so that they can explain and discuss it with you.
The time this will take depends on:
- the size of the organisation
- how many staff are affected
- the complexity of any changes
Your right to notice under TUPE
You'll be given notice of a TUPE transfer but there is no set length of time for this notice. Your employer is not ending your contract so they do not need to give you the same notice period as they would in other circumstances, for example if they were dismissing you.
All your current terms and conditions will automatically transfer from your old employer to your new employer on the transfer date.
If your employer does not inform or consult
By law, your employer must consult you when they make a TUPE transfer.
You may be able to make a claim to an employment tribunal if:
- there was no recognised trade union and no employee representatives were elected
- you were an employee representative and were not properly consulted
- you worked in a smaller organisation (fewer than 10 employees) and your employer did not consult you directly
If there was a recognised trade union and it was not consulted, the union could make a claim.
If the claim is successful, you could receive up to 13 weeks’ pay. Either your old or new employer could be liable to pay the compensation, or it could be split between them.