Jeffrey Jupp's TUPE resource

Acas Guidance on Collective Redundancies 2013

Although concerned with consultation for collective redundancies rather than under Reg 13 of TUPE, the new Acas Guidance will be relevant if there is a  transfer and redundancy situation.

Following the amendment to section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 from 6th April 2013 so as to reduce the mandatory period for consultation from 90 to 45 days in cases of dismissals of 100 or more employees ACAS produced Guidance; How to Manage Collective Redundancies.  Page 25 of the Guidance deals with collective consultation for redundancy in the context of TUPE and this is reproduced below

Collective redundancies and TUPE

The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) protects employees’ terms and conditions of employment when a business is transferred from one owner to another. Employees of the previous owner when the business changes hands automatically become employees of the new employer on the same terms and conditions.

It’s as if their employment contracts had originally been made with the new employer. Their continuity of service and any other rights are all preserved.  Both old and new employers have duties to inform and (in some cases) to consult any employees affected directly or indirectly by the transfer. Unlike the collective redundancy regulations, there is no trigger for this right based upon the number of employees – it applies whether one or 500 employees are affected.

But what happens if either the old or new employer proposes to make redundancies during or after a transfer of undertaking?

This timing of two parallel consultation processes – one for collective redundancies and one for a transfer of undertaking – can cause some confusion for employers.  It can also be unclear to what extent the new or old employer should be involved in consultation and whether it can take place before the transfer.

Good practice suggests that the new and old employer should work together cooperatively to ensure effective consultation.  In some instances, the new employer can start collective redundancy consultation with the transferring employees before the transfer is completed.

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