Reg 13(2) requires that the employer should inform and consult ‘long enough before’ the transfer. This case concerns the meaning of ‘long enough before’.
LLDY operates a distillery. It was engaged in a dispute with employees over pay. Unite negotiated a 3% pay increase, which was put to its members in a ballot, and rejected. The Unite representative gave evidence to the ET that the MD LLDY had threatened to subcontract the work if the offer was rejected. The ET accepted this evidence.
A few weeks later LLDY decided to outsource its spirit handling work to the Peopleforwork Ltd.
LLDY’s reasons for the transfer were provided by letter to employees 10 business days before the transfer. The letter did not mention the pay dispute as a reason. LLDY held a meeting about the transfer with trade union representatives 48 hours before the respondent was to close down for the weekend, with the transfer taking place the following Monday.
Unite sought a declaration that the respondents failed in their duty to inform and consult in contravention of Reg 13(2) because the reasons were incomplete and the employees were provided with insufficient time for effective consultation. The ET made the declaration. LLDY appealed to the EAT.
Judgment of the EAT
The EAT noted that the ET had held that the refusal to accept the pay increase was one of the reasons for the transfer. This was a decision of fact which the ET was entitled to make. If it was a reason, Reg 13(2) required as it was ‘information’ it should have been mentioned to the employees. The letter to employees referred to costs savings, but it did not refer specifically to the refusal of the pay offer. The EAT noted that it would have been a simple matter for LLDY to have been plain that the pay dispute was a reason.
There was no duty on LLDY to consult in relation to Reg 13(6) because it did not envisage that it would “take measures” in relation to an affected employees. However, the EAT held that, in accordance with Cable Realisation Limited v GMB (2010), LLDY had a duty to provide information long enough before the transfer to allow consultation. This did not mean that the information in Reg 13(2) had to be provided at a formative stage. The obligation is only to provide the information “long enough before” the transfer to allow consultation to take place. The ET was entitled to find that, on these facts, this was not sufficient time to allow for consultation.