TUPE cancellation of election for pre-transfer consultation

If, as a transferee in a TUPE situation, you’ve issued a notice of election to the transferor for pre-transfer consultation in relation to proposed collective redundancies, you can subsequently cancel that election using our notice.

Statutory provisions

It’s common for collective redundancies to be proposed by a transferee employer in connection with a TUPE transfer. If so, there will be overlapping obligations to inform and consult under both the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) and the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Section 198A of TULRCA therefore allows a transferee in a TUPE situation, who is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, to elect to consult (or to start to consult) about the proposed redundancies with the appropriate representatives of affected transferring employees before the TUPE transfer takes place. This is called pre-transfer consultation and is relevant where the transferor’s employees who are to be transferred to the transferee’s employment pursuant to the TUPE transfer include one or more individuals who may be affected by the proposed redundancy dismissals, or by measures taken in connection with those proposed redundancy dismissals. In practice, it means pre-transfer consultation undertaken by a transferee can count towards their collective redundancy consultation obligations where post-transfer redundancies are anticipated.

Written notice of election

To undertake pre-transfer consultation, the transferee must first give a written notice of election to consult to the transferor – see our TUPE Election for Pre-Transfer Consultation – and the transferor must then consent to it. Where, following consent being given to a notice of election, pre-transfer consultation is carried out, TULRCA applies from the time of the election (and continues to apply after the TUPE transfer) as if the transferee was already the transferring employees’ employer and as if any transferring employees were already employed at the transferee’s business establishment.

Cancellation of election

Section 198A of TULRCA also provides though that the transferee can cancel their election at any time by written notice to the transferor, and this is the purpose of our TUPE Cancellation of Election for Pre-Transfer Consultation. If our cancellation notice is used, the consequence is that any consultation carried out so far has no effect. In addition, the relevant parties, i.e. the appropriate representatives, the Secretary of State and the transferring employees, who were notified of the election or the proposed redundancy dismissals must be notified of the cancellation as soon as reasonably practicable. Where an election is cancelled, the transferee is prohibited from subsequently making a fresh election in relation to the proposed redundancy dismissals.