Monday, 18 August 2014

TUPE and consultation with the unrepresented employee

On first blush, the TUPE regs only seem to apply a burden on the employer to appoint reps and consult with reps. This potential lacuna stuck its head above the parapet in the case of Imperial Day Nursery & Ors v Marshall UKEAT/0217/10/CEA.

The respondent argued that the claimant was not entitled to bring a claim under regulation 15 of TUPE which, they claimed, does not offer assistance when an employee respresentative is not engaged. Mrs Justice Slade suggested that the two advocates hadn't  considered the Employment Appeal Tribunal case of Howard v Millrise, which observed that it was unnecessary to decide under which provision of what are now regulations 15(1)(a), (b) or (d), 

The salient facts of 'Imperial' are these:

There was no information or consultation with employee representatives in connection with the transfer, and there were no such representatives. Mr Meredith, on behalf of the employers, contends that the only right by which an individual, such as Ms Marshall, could claim and complain under TUPE of the failure of the employers to inform and consult in relation to the transfer was under regulation 13(11).

The original tribunal judgment reads:

 judgment in which they deal with the claim under TUPE.

Paragraph 4:

"The Tribunal has considered the following provisions:- Regulation 15 and 13(14) of the TUPE Regulations. […]"

Paragraph 6:

"In respect the Claimant's claim for failure to comply with the TUPE Regulations, the Respondents' arguments in this regard are misconceived. The Claimant was patently entitled to bring the claim under both Regulation 13 and Regulation 14, by virtue of Regulation 15(b) when no representative is engaged. The Tribunal had some difficulty trying to understand the Respondents' arguments in this regard."

The Regs say:

The TUPE Regulations

9. Regulation 13(2):

"Long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives of any affected employees, the employer shall inform those representatives of -

(a) the fact that the transfer is to take place, the date or proposed date of the transfer and the reasons for it;

(b) the legal, economic and social implications of the transfer for any affected employees;

(c) the measures which he envisages he will, in connection with the transfer, take in relation to any affected employees or, if he envisages that no measures will be so taken, that fact, and

(d) if the employer is the transferor, the measures, in connection with the transfer, which he envisages the transferee will take in relation to any affected employees who will become employees of the transferee after the transfer by virtue of regulation 4 or, if he envisages that no measures will be so taken, that fact."

10. Regulation 13(3):

"For the purposes of this regulation the appropriate representatives of any affected employees are -

(a) if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union; or

(b) in any other case, whichever of the following employee representatives the employer chooses -

(i) employee representatives appointed or elected by the affected employees otherwise than for the purposes of this regulation, who (having regard to the purposes for, and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the transfer on their behalf;

(ii) employee representatives elected by any affected employees, for the purposes of this regulation, in an election satisfying the requirements of regulation 14(1)."

Regulation 13(6):

"An employer of an affected employee who envisages that he will take measures in relation to an affected employee, in connection with the relevant transfer, shall consult the appropriate representatives of that employee with a view to seeking their agreement to the intended measures."

Regulation 13(11):

"If, after the employer has invited any affected employees to elect representatives, they fail to do so within a reasonable time, he shall give to any affected employees the information set out in paragraph (2)."

Regulation 14 deals with the election of employee representatives and places obligations in that regard on the employer.

Regulation 15(1):

"Where an employer has failed to comply with a requirement of regulation 13 or regulation 14, a complaint may be presented to an Employment Tribunal on that ground -

(a) in the case of a failure relating to the election of employee representatives, by any of his employees who are affected employees;

(b) in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related;

(c) in the case of failure relating to representatives of a trade union, by the trade union; and

(d) in any other case, by any of his employees who are affected employees."

The Respondent averred that the claim was made on behalf of the employee under regulations 13(2) and 13(6), and these regulations imposed no obligation on an employer in relation to an individual employee; they impose obligations on the employer in relation to employee representatives. The only obligation on an employer imposed by regulation 13 is that in 13(11) and Mr Meredith contends that there was no 13(11) claim placed before the Employment Tribunal.

Mrs Justice Slade commented that he nor counsel appearing for the employee, nor the Employment Tribunal themselves, appear to have been aware of the case of Howard v Millrise Limited [2005] IRLR 84. In that case the Employment Appeal Tribunal held that an individual employee has standing to pursue a complaint for breach of what is now regulation 13 of TUPE by means of what is now regulation 13(11).

The report summary can be found here

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