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TUPE Consultation

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[Thanks to David Reade, who appeared for the CWU, for telling me about this case, and to Joanne Sefton - both of Littleton Chambers- for summarising it]

In Royal Mail v Communication Workers Union , the Court of Appeal has considered employer's consultation obligations in a TUPE transfer situation.

It held that the only obligation on a transferor employer is to communicate matters (such as the legal, social and economic implications of the transfer) as it believes them to be. It does not warrant the truth of what it says - so if it makes a mistake about the legal implications of the transfer, it will not (without more) be liable for a failure to inform and consult.

The case took place in the context of the sell-off of some post office services to WH Smith, where the Royal Mail took the view that TUPE did not apply (which, needless to say, influenced its view as to the legal implications of a transfer).

Giving the leading judgment, Waller LJ said: "It is a powerful argument that employees need to know where they are... But in my view it does not follow that the employer must, in effect, warrant the accuracy of the law." (para 62) 

Whilst this decision will be welcomed by employers, it may be a difficult test to apply in practice, particularly where employers may be forced to waive privilege in the are unwilling to disclose the legal advice which they have received to make good the defence.