In Cable Realisations Ltd v GMB Northern, the EAT upheld a protective award for failure to provide relevant information "long enough before a transfer" and confirmed that information must be provided to representatives in sufficient time for voluntary consultation to take place, even where there is no statutory obligation to consult affected employees under TUPE.

In the course of the sale of its business, Cable provided the union with the information required by regulation 13(2) of TUPE on 15 August, 19 days in advance of the sale.  However, Cable's factory then closed for its annual two-week shutdown, during which time no consultation could take place.  Neither Cable nor the buyer envisaged taking "measures" so there was no statutory requirement to consult under TUPE.  However, because of the shutdown, there was little opportunity for any consultation to take place, if the employees had wanted to consult, before the TUPE transfer took place on 3 September. 

The EAT found that Cable was in breach of TUPE by failing to provide the required information long enough before the transfer and that transfer date could have been deferred to allow an opportunity for consultation.  It upheld a protective award of 3 weeks' pay per employee.

Impact on employers

• The requirement to provide information under TUPE in good time before a transfer is a standalone obligation, breach of which could result in the maximum protective award of 13 weeks pay being made.
• Even if there are no "measures" about which to consult, employers should provide information in good time to allow consultation to take place.  This needs to be built into the transaction timetable.

10 December 2009

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