EAT Transfer of Undertakings – TUPE Regulations 2006: reg 13(2).
The first respondent decided to outsource part of its activities to the second respondent. The claimant is a Trade Union, representing the workers affected by the transfer. It claimed that TUPE reg 13(2) was breached in that not all of the reasons for the decision to transfer were provided to it. The claimant had been in discussion with the first respondent about a pay rise. No agreement had been reached and the claimant asserted that the first respondent decided on the transfer because of the dispute, and because the managing director had stated that if no agreement was reached he would outsource the work. Further and in any event the information given to the claimant was not given long enough before the transfer to enable consultation between the claimant and the first respondent. The claimant sought a declaration and award of compensation under TUPE reg 12. The ET made the declaration on both counts and adjourned the question of remedy to a later hearing.
The first respondent appealed arguing that the ET had erred in law by deciding that the first respondent had a duty to consult, as provided for in reg 13 (6), despite no such argument being before it; that it erred in law in deciding that the first respondent had decided on the transfer due to the dispute or due to the managing director’s words; that it erred in law in deciding that the information provided was not provided long enough before the transfer to enable consultation. The second respondent supported the appeal.
The claimant argued that the ET was entitled to reach its decisions.
Held: The ET did not decide that the first respondent had a duty to consult under reg 13(6), that regulation not being engaged. The ET was entitled to find that the dispute and the intention expressed by the managing director were reasons for the decision. It was entitled to find that the reasons given did not include all of the reasons. The ET was entitled to find that the information was not provided long enough before the transfer to enable consultation between the claimant and the first respondent. Appeal refused.
Lady Stacey Hon
[2014] UKEAT 0002 – 14 – 3004
Bailii
England and Wales
Employment
Updated: 23 December 2021; Ref: scu.538835
