TUPE employee rep role explanation letter

Where you need to commence TUPE consultation with appropriate representatives, it’s helpful to start by letting them know what their role is in the process by using our letter. Your duty is to inform and, where any measures are proposed to be taken, to consult with them.

A TUPE transfer

Where you’re involved in a business transfer or service provision change covered by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”), you’re obliged to inform and, where you envisage taking any measures in relation to your employees in connection with the transfer, consult with appropriate representatives of the affected employees. This can either be representatives of a recognised trade union or, if there’s no union recognised, employee representatives elected by the affected employees (including an existing body of elected representatives who have the authority to act). Unlike collective redundancy, the duty applies regardless of how many employees are affected by the TUPE transfer, e.g. even if there’s only a couple. However, micro-businesses employing fewer than ten employees in total and which do not already have appropriate trade union or employee reps in place are permitted to inform and consult directly with all affected employees, rather than through appropriate reps. Our TUPE Employee Rep Role Explanation Letter helps to explain the reps’ role and duties. It’s not a legal requirement but it can help keep things on the right track, particularly with inexperienced representatives. The obligation to inform and consult applies to both the transferor (seller or outsourcer) and transferee (buyer or insourcer), but our letter is drafted on the basis that you’re the transferor. If you’re the other party, amend it accordingly.

duty to inform and consult

You’re obliged to provide certain information about the TUPE transfer and its implications to the reps long enough before the transfer to enable consultation to take place (see our Letter Inviting Consultation in Accordance with TUPE). This is then followed by a series of meetings with them. Our letter assumes that the TUPE information will be provided to the reps, and the first meeting will be set up, shortly after it’s sent. If you envisage that you’ll be taking measures in relation to your affected employees in connection with the transfer, then you must also consult as well as inform. If there are no measures, strictly speaking, the obligation is only to inform, not consult - although in practice it’s advisable to consult about all the consequences of the transfer. Consultation must be undertaken with a view to seeking the representatives’ agreement to the intended measures, so you need to negotiate in good faith. You only need to inform and consult reps of your own employees, so if you’re the transferor, you don’t need to consult with the transferee’s reps and vice versa, but you can nevertheless choose to do so.

Representative’s role

The role of the representative is to:

• receive the information you provide about the TUPE transfer and any proposed measures
• share that information with the employees and obtain their views
• attend consultation meetings
• make representations to you and let you know employees’ views and questions
• keep the employees informed of progress and developments
• if appropriate, consult with you about any proposed measures.

They’re also allowed reasonable paid time off during normal working hours to carry out their duties and access to the affected employees and to such accommodation and other facilities as may be appropriate to help them perform their duties.