The legislative purpose of the provision of information as to a proposed transfer of an undertaking is to facilitate proper and effective consultation, though the transferor need only inform of those measures which he actually envisages will be implemented. Millett J said: ‘The consultations referred to in the opening words of subsection (6) are voluntary consultations, which the unions may seek on any topic once they have the requisite information,, but which the transferring employer is not compelled to grant if he chooses not to do so.’
The term ‘measures’ is ‘a word of the widest import’ which includes any action, step or arrangement, while ‘envisages’ simply means ‘visualises’ or ‘foresees’.
‘The second question which was canvassed before me was the extent of the obligation to consult which is placed upon the Secretary of State. That obligation is imposed by [the 1986 Act], and it arises only where the Secretary of State envisages that he will be taking measures in connection with the transfer. Thus the Act evidently requires the Secretary of State to inform the unions of four different matters, but to consult them on only one of them. I was for some time oppressed by the apparent illogicality of this. Why should the Secretary of State be required to consult the unions where he envisages that he will take measures, but not when he envisages that he will take none? The unions may well wish to be consulted as much in the second case as in the first. And why is the Secretary of State required to inform the unions in time to enable effective consultations to take place of matters on which he is not required to consult them? Logically, the consultations referred to . . must include, but cannot be confined to, those referred to [later]. On the other hand, Parliament can hardly have intended to compel the employer in the private sector to consult the unions on the desirability of the transfer itself or the sufficiency of the reasons for it. These are matters of business policy for the transferring employer to decide, and the unions cannot expect to participate in the decision. The reconciliation, in my view, is this. The consultations referred to . . are voluntary consultations, which the unions may seek on any topic once they have the requisite information, but which the transferring employer is not compelled to grant if he chooses not to do so. The only consultations which he is obliged by law to enter into are those referred to . . .’
Judges:
Millet J
Citations:
[1987] IRLR 373
Statutes:
Transfer of Undertakings (Protection of Employment) Regulations 1981, EC Directive 77/8187, Dockyard Services Act 1986
Jurisdiction:
England and Wales
Cited by:
Cited – Cable Realisations Ltd v GMB Northern EAT 29-Oct-2009
The company appealed against the upholding of the union’s claim that the company was in breach of the regulations. The company was to close its factory and decided at first to begin consultations for redundancy, but then looked for a buyer for the . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 27 September 2022; Ref: scu.401955