Who to consult with - TUPE: informing and consulting

Who to consult with

All affected staff must be included when informing and consulting about the transfer – this includes employees who are on sick leave and maternity, adoption or paternity leave.

Affected employees include those:

  • transferring from the old employer to the new employer
  • staying employed with the old employer but whose colleagues will transfer out
  • already working for the new employer, whose work will be affected by the staff transferring in

You can inform and consult staff individually or through a recognised trade union or authorised employee representatives, depending on the size of your organisation.

Who you must consult with

If there are recognised trade union or authorised employee representatives, you must consult with them.

If your organisation has 10 or more employees and there are no recognised trade union or authorised employee representatives, you must arrange elections for the affected employees to vote for representatives.

If your organisation has fewer than 10 employees and there are no recognised trade union or employee representatives, you could either:

  • arrange an election with the affected employees to vote for representatives
  • consult directly with every affected employee

If you need to arrange elections for employee representatives

When arranging an election of employee representatives, you must make sure that:

  • all employees who stand for election are affected by the transfer at the time of the election
  • 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

It's good practice to encourage employees to stand for election and give them a second chance to do so if the initial election fails to attract enough candidates.

To encourage nominations, you could:

  • reassure staff that they would receive employee representative training
  • explain their rights

If the employees do not elect representatives within a reasonable time, you must give the required information directly to all affected employees.

Rights of employee representatives

During the consultation, you should give employee representatives the right to:

  • a reasonable amount of paid time off for representation duties
  • reasonable access to affected employees and workplace facilities
  • paid time off for TUPE training

You must not dismiss an employee or treat them unfavourably because they're a trade union or employee representative.

Find out more about trade union and non-union representation

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