23 April 2014 #Employment
The EAT in Allen v Morrisons Facilities Services Ltd has confirmed that the obligations to inform and consult employee representatives under Reg 13(2) of Tupe are vertical obligations between an employer (whether Transferee or Transferor) and its own employees. As such, any claims for failure to provide the required information must also be brought vertically by employees against their respective employer (determined at the time of the alleged breach).
Prior to a Tupe transfer both employers are required by Reg 13(2) to consult with their employee representatives and inform them of:
a) The fact that the transfer is to take place, the date (or proposed date) when it is to take place and the reasons for it.
b) The legal, economic and social implications of the transfer for any affected employees
c) The measures envisaged to be taken by that employer in connection with the transfer in relation to any affected employees, or, if no measures are envisaged, that fact.
And, where the employer is the Transferor it must also provide
d) Information to its employees about any measures in connection with the transfer that the Transferee envisages it will take in relation to the transferring employees or, if no measures are envisaged, that fact.
Where claims relate to a failure of the Transferor to provide to its employees the information in (d) above, the remedy of those employees is to submit a claim against the Transferor. There is no mechanism in Tupe to allow them to submit claims against the Transferee directly.
In the case, the claimant employees had already settled or withdrawn claims against the Transferor and now sought to bring claims for failures under (d), directly against the Transferee (their current employer following the transfer). The EAT however confirmed that their rights under Reg 13(2) related to being provided with information by their employer (the Transferor) prior to the transfer. Their only remedy was therefore to claim against the Transferor for its failures to comply with (d) and independent claims could not be brought against the Transferee.
Only if the Transferor is found to have been in breach of its obligations and has raised as its defence a failure by the Transferee to provide it with the information required to inform its employees (and has issued notice to join the Transferee to proceedings), may liability be shifted from the Transferor and an order for compensation be made against the Transferee. The Transferee cannot be made a party to such proceedings in any other way.