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TUPE - Failure to Consult

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[Thanks to Ed McFarlane of EEF for providing this case summary]

The EAT (HHJ Peter Clark) has handed down its decision in Cable Realisations v GMB , which is authority for the proposition that:

  • in a TUPE transfer, the obligation to inform affected employees is a discrete obligation which arises even if no measures are contemplated in relation to the transfer;
  • in setting a protective award for a breach of Regulation 13 TUPE, applying Susie Radin (a redundancy consultation case) the size of the protective award should reflect the justice of the case; and,
  • on the facts, an award of three weeks pay per affected employee, appealed by both sides, was "like baby bear's porridge,... just right".

Accordingly, employers who make a porridge of their Regulation 13 obligations do not automatically face a compensation (honey) pot of 13 weeks' pay per affected employee. The EAT also remarked that the provision of information is designed to facilitate informed consultation, whether or not it is obligatory.