TUPE consultation simplified – when can you now consult directly with employees?

Louise Walker
Legal Director
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If you are an employer taking over another business, or an organisation involved in outsourcing or insourcing, perhaps taking over a client contract from an existing provider, it is important to consider, in advance, whether the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended)(TUPE) applies to the transfer.

As those who have been through a TUPE transfer process will know, TUPE places certain obligations upon the outgoing and incoming employer in a TUPE transfer in respect of the employees working in the business, or working on the contract changing hands, to ensure the protection of employment and employment terms. TUPE also requires the parties involved to comply with certain informing and consulting obligations.

TUPE places an obligation on both the outgoing employer and the incoming employer to inform and, sometimes, consult with a recognised trade union regarding employees affected by the transfer. Where there is no recognised trade union, this process must take place with employee representatives either specifically elected for this purpose or already authorised to represent affected employees in TUPE transfer processes.

The information and consultation requirements under TUPE changed in relation to certain limited situations on 1 July 2024. These changes were aimed at providing more flexibility to employers in these limited transfer situations in respect of their duty to inform, and sometimes consult with, affected employees in advance of a TUPE transfer.

Pre- 1 July 2024, TUPE permitted only microbusinesses (with less than 10 employees, without a trade union or existing representatives), to consult directly with affected employees in connection with a proposed TUPE transfer. However, with effect from 1 July 2024, the ability to consult directly with affected employees was extended.

For transfers taking place after 1 July 2024, employers who are party to a TUPE transfer, who have no existing trade union or other employee representatives in place, will be permitted to consult directly with affected employees, in circumstances where:

1. The organisation employs less than 50 employees; or
2. The transfer involves less than 10 employees, regardless of the size of the organisation.

For such situations, the ability to directly consult with affected employees will significantly simplify preparations and reduce the administrative burden associated with the election of employee representatives. Direct communication can also be a quicker and more effective way of distributing information and can encourage enhanced dialogue in what may be unsettling times for those affected.

Notwithstanding these changes, even where direct consultation would be permitted, employers should still consider whether it may remain beneficial to elect representatives to participate in the informing and consulting process (such as where numerous or wide-ranging “measures” are proposed).

If you would like to discuss the implications of these recent changes, or if you need guidance on your obligations in respect of any proposed TUPE transfer, or to discuss any other employment matter, please do not hesitate to contact a member of the team on 0141 331 5150.

Topics: TUPE