When a TUPE transfer occurs, before the transfer, both the old and new employers must by law, inform and consult with a recognised trade union or employee representatives.

To ‘inform’ is when you tell your affected employees or their representatives the facts about the transfer. To ‘consult’ is when you talk and listen to affected employees or their representatives on expected ‘measures’ which are effectively changes that could affect employees and genuinely consider their views.

There is no fixed length of time for employers to inform and consult employees and their representatives in a TUPE transfer. By law, you must allow enough time to inform and fully consult before the transfer takes place. You should start the process as early as possible, to make sure you meet consultation requirements and allow enough time to include any suggestions from employees or their representatives that you wish to consider.

The role of employee representatives is to speak on behalf of the affected staff. If you do not have an existing arrangement for representatives for TUPE consultation, you will need to hold an election process. If you have a recognised trade union to represent the affected staff, you must inform and consult through the union.

Even if there are trade union representatives, you should keep all affected employees informed about the transfer. Not all employees will be members of a trade union, so they may not receive updates from the union representatives.

What you must inform about

 Both old and new employers must inform the representatives of affected employees in writing about the details of the transfer, including why it’s happening. This could be in a letter or email.

The new employer must inform the old employer of the measures that are likely to affect employees transferring in. The old employer must pass this information on to the appropriate representatives of the affected employees.

The information the old and new employer must give representatives in writing must include:

• Confirmation that the transfer is happening, when it is expected to happen and why
• How you plan to carry out the transfer
• Whether there will be any restructuring
• The number of agency workers employed, the departments they are working in and the type of work they are doing, if agency workers are used
• Any measures the new employer is expecting which may affect staff transferring in, for example, changes to working hours, job descriptions, salary payment dates or risk of redundancies
• Any legal, economic, and social implications

Legal, economic, and social implications might include:

• Legal implications, the effect on contracts, statutory rights, and collective agreements
• Economic implications, the new employer’s financial worth, pay, benefits and pension
• Social implications, any changes to start and finish times, or changes to team and management structures

 What you must consult about

 You must consult with trade union or authorised employee representatives about any measures you are expecting as part of the transfer.

In a transfer, measures might include:

• Redundancies
• Change in location of work
• Changes to pay dates
• New working patterns, for example hours of work
• Different pension arrangements
• Changes to trade union recognition or collective bargaining

The old employer must inform their affected staff about any measures the new employer might make. But they cannot consult on these changes because they have no control over them.

If no measures are expected, no consultation is needed. However, the definition of measures is wide. The new employer should consult unless they are sure employees will not experience any change as a result of the transfer.