A recent employment tribunal decision is a timely warning to employers who may not be aware that the law relating to collective consultation on a TUPE transfer and where more than 20 redundancies are proposed has changed.
In October 2011, the Agency Workers Regulations introduced a requirement for "suitable information" about the use of agency workers by the employer to be given to employee representatives during collective consultation on a TUPE transfer or where mass redundancies are proposed.
Suitable information means:
- The number of agency workers working temporarily for and under the supervision and direction of the employer.
- The parts of the employer's undertaking in which those agency workers are working.
- The type of work those agency workers are carrying out.
The requirement to give suitable information about agency workers is actually rather onerous for larger organisations as it requires data about agency workers across the whole of the employer's business to be given and not just about the part which is affected by the TUPE transfer or collective redundancies.
In January 2013 the Government issued a consultation on proposed changes to TUPE. In that consultation paper the Government said it is "not minded to make any changes" to the requirement for suitable information to be given.
Employment tribunal decision
In Unison v London Borough of Barnet and another ET/3302128/2012 the Council was found to have breached this obligation and a protective award was made against them as a result (of between 60 and 40 days' pay per affected employee).
We believe this is the first time a tribunal has considered the new obligation, contained in regulation 13(2A) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 and section 188(4)(g) of the Trade Union and Labour Relations (Consolidation) Act 1992.
It appears from the evidence in this case that neither the employer nor the Union (at the time) was aware that the law had changed so other employers would be well advised to remember this relatively new obligation and avoid making the same error!