Letter inviting consultation in accordance with TUPE

The TUPE legislation requires that you undertake consultation with recognised trade unions or elected employee representatives prior to the TUPE transfer taking place. You have to provide them with specified information in writing and you may also be required to consult with them with a view to seeking their agreement to any measures proposed to be taken in relation to the affected employees.

Information and consultation

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) provide a right for recognised trade unions or elected representatives of the employees to be informed and consulted about an impending TUPE transfer. You are required to consult with the “appropriate representatives” of employees affected by the transfer. Where there is a recognised trade union, its representatives must be the “appropriate representatives”. Where there is no recognised trade union, you can choose between:

• employee representatives already elected by the employees, provided they are deemed to have the authority of the affected employees, bearing in mind the purposes for and method by which they were appointed or elected; or

• employee representatives specifically elected for the purpose of the TUPE transfer, provided that the process of their election complies with set statutory requirements.

However, if you are a micro business which employs fewer than ten employees in total, you can instead inform and consult about the TUPE transfer with each affected employee, provided there are no appropriate representatives already in place and you haven’t invited any of the affected employees to elect employee representatives.

Information to be disclosed

For the purposes of consultation, you must disclose in writing the following information to the appropriate representatives long enough in advance of the transfer to enable you to consult with them, i.e. at the earliest practical moment once the decision to transfer is made:

• the fact that the transfer will occur

• the proposed transfer date

• the reasons for the transfer

• the legal, social and economic implications of the transfer for the affected employees

• any measures that you or the transferee (the buyer) envisage taking in relation to the affected employees in connection with the transfer (or, if no measures are envisaged, that fact) - where there are any proposed measures, there should be consultation with the appropriate representatives with a view to seeking their agreement to the measures to be taken

• suitable information relating to your use of agency workers (if any), i.e. the number of agency workers working temporarily for you and under your supervision and direction, the parts of the undertaking in which those agency workers are working and the type of work they are carrying out.

During consultation, you must consider and respond to any representations made by the representatives and if you reject their representations, you must state the reasons. Our Letter Inviting Consultation in Accordance with TUPE ensures that you meet your statutory obligation to provide all the required information in writing.