Post-Transfer Consultation Obligations under TUPE: UCATT v. AMICUS & Ors Commentary
Introduction
The case UCATT v. AMICUS & Ors ([2009] IRLR 253) adjudicated by the United Kingdom Employment Appeal Tribunal on November 19, 2008, addresses critical aspects of the Transfer of Undertakings Protection of Employment Regulations 2006 ('TUPE'). The primary parties involved were UCATT, AMICUS, TGWU as claimant unions, and City Building (Glasgow) LLP ('LLP') as the transferee employer, alongside the original employer, City of Glasgow Council ('CGC'). The core issues revolved around the obligations of the transferee post-transfer, particularly the duty to consult with transferred employees’ representatives about any measures affecting them after the completion of the transfer.
Summary of the Judgment
UCATT sought to amend their claim to include additional allegations of failure by LLP to consult with transferred employees post-transfer under TUPE 2006. The Employment Tribunal in Glasgow denied this amendment, determining that under TUPE, the transferee employer, LLP, had no obligation to consult with employee representatives after the transfer was completed regarding measures that might affect transferred employees. UCATT appealed this decision, but the Employment Appeal Tribunal upheld the refusal, reinforcing the interpretation that TUPE's consultation duties are confined to the pre-transfer period.
Analysis
Precedents Cited
The judgment extensively referenced several key precedents to underpin its reasoning:
- Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223 - Establishing the standard for judicial review of discretionary decisions.
- Cocking v Sandhurst Ltd [1974] ICR 650 - Highlighting the importance of considering all circumstances and potential injustices when allowing amendments to claims.
- British Newspaper Printing Corporation (North) Ltd v Kelly & Ors [1989] IRLR 222 - Confirming the authoritative status of Cocking in allowing claim amendments.
- Wilson v St Helen's Borough Council [1998] IRLR 706 HL - Emphasizing the necessity to interpret national regulations in line with European Directives.
- Institute of Civil Servants and others v Secretary of State for Defence [1987] IRLR 373 - Discussing the extent of consultation obligations within TUPE.
- Mummery J in South Durham Health Authority v Unison [1995] ICR 495 - Supporting the interpretation that TUPE does not impose post-transfer consultation duties.
These precedents collectively informed the tribunal's approach to interpreting TUPE's provisions, particularly regarding the scope and timing of consultation obligations.
Legal Reasoning
The tribunal's legal reasoning centered on a meticulous interpretation of TUPE 2006 and the underlying European Directive 2001/23/EC. It concluded that:
- Pre-Transfer Obligations: Both transferor (CGC) and transferee (LLP) are obligated to inform and, where applicable, consult with their respective employee representatives before the transfer occurs. This ensures that employees are adequately informed about the transfer and any measures that might affect their employment.
- Post-Transfer Consultation: The tribunal held that TUPE does not impose any duty on the transferee to consult with transferred employees after the transfer has been completed. The obligations to inform and consult are strictly pre-transfer, aimed at facilitating informed decision-making by employees regarding the transfer.
- Amendment of Claims: UCATT's attempt to amend their claim to include post-transfer consultation failures was denied based on established criteria from Selkent Bus Co Ltd v Moore [1996] ICR 836 and Cocking v Sandhurst Ltd [1974] ICR 650. The Tribunal assessed the lateness of the amendment, the reasonable practicability of its submission within the original time limits, and potential prejudices to the respondents, ultimately finding UCATT's request unfounded.
- Directive Interpretation: The tribunal emphasized that the European Directive aims to protect contractual rights and ensure fair treatment during the transfer process. Extending consultation duties post-transfer would be beyond the Directive’s intended scope and impose unreasonable burdens on transferee employers.
Impact
This judgment establishes a clear precedent that under TUPE 2006, transferee employers are not required to engage in consultation with transferred employees’ representatives concerning measures affecting them post-transfer. The ruling:
- Clarifies TUPE Obligations: Reinforces the understanding that TUPE's information and consultation duties are confined to the pre-transfer phase.
- Limits Claims Against Transferees: Prevents unions and employee representatives from pursuing claims against transferees for post-transfer consultation failures, thereby providing certainty to transferee employers regarding their obligations.
- Guides Future Tribunal Decisions: Offers a framework for Employment Tribunals in assessing similar amendment requests, ensuring consistency in the application of procedural timelines and substantive obligations under TUPE.
- Influences Union Strategies: Unions may need to adjust their approaches, recognizing the limitations of TUPE in enforcing post-transfer consultation obligations.
Complex Concepts Simplified
Transfer of Undertakings Protection of Employment Regulations 2006 (TUPE)
TUPE is a UK regulation designed to protect employees' rights when a business or part of it is transferred to a new employer. It ensures that employees retain their terms and conditions of employment and that their rights are safeguarded during the transition.
Duty to Inform and Consult
Under TUPE, employers must inform and, where applicable, consult with employee representatives about the transfer. This includes providing details about the transfer itself, reasons for it, implications for employees, and any measures envisaged in relation to employees. However, this duty is limited to the period before the transfer takes place.
Employment Appeal Tribunal (EAT)
The EAT is a specialist tribunal in the UK that hears appeals from Employment Tribunals on points of law. Its role is to ensure that the law is correctly interpreted and applied in employment disputes.
Amendment of Claims
In legal proceedings, parties may seek to amend their claims to include additional allegations or evidence. However, such amendments are subject to strict criteria, including timeliness, fairness, and whether the amendment causes undue prejudice to the opposing party.
Conclusion
The decision in UCATT v. AMICUS & Ors solidifies the interpretation of TUPE 2006 concerning information and consultation obligations, clearly delineating the boundaries of employer responsibilities both pre- and post-transfer. By affirming that post-transfer consultation duties do not exist under TUPE, the judgment provides definitive guidance to employers, employees, and their representatives. It safeguards employers from unwarranted claims while ensuring that employee rights are protected during the critical pre-transfer phase. This balance underscores TUPE's role in facilitating smooth business transitions without imposing excessive burdens on transferees, thereby maintaining stability in employment relations amidst organizational changes.
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