Helpful confirmation for employers on who is "affected" by a TUPE transfer

Published: 7th January 2010

When there is a TUPE transfer employers must provide written information to, and usually consult with, representatives of "affected employees". A failure to do so results in an award of up to 13 weeks actual pay to each affected employee, which is unusually imposed as a punishment not a reflection of loss. The Employment Appeal Tribunal have, for the first time, provided clarification upon who is an "affected employee", in the case of Unison v Somerset County Council and others.

It is often forgotten that the obligation to inform and consult goes beyond the actual staff transferring and can cover other employees affected by the transfer. In this case, Unison tried to argue that other Council staff were affected by an outsourcing because their opportunities for promotion and transfer in the future would be less once the service transferred. The EAT have rejected their argument that the requirement is so wide, noting the "dramatic consequences" of doing so.

The EAT's clarification is that "affected employees" are "those who will be or may be transferred or whose jobs are in jeopardy by reason of the proposed transfer, or who have job applications within the organisation pending at the time of the transfer." It does not extend to the whole workforce or everyone who might apply for a vacancy in the part transferred at some point in the future.

This is reassuring for employers and helpfully limits the obligation (and the number of people who may bring claims). However, it is also a reminder that you must consider not only those actually transferring when informing and consulting prior to a TUPE transfer. You should include those whose jobs are affected or may be at risk of redundancy as a result of the transfer, and those who have applied for jobs in the part being transferred.

If this case raises any issues for your organisation please speak to your usual contact in the Mace & Jones Employment and HR team in Liverpool: 0151 236 8989 or Manchester: 0161 214 0500.