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TUPE: No consultation claim against transferee

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Thanks to Jasvir Kaur of Squire Sanders for preparing this case summary

Can employees bring a direct claim against a transferee for failure to provide information to a transferor?

No, held the EAT in Allen v Morrisons Facilities Services Ltd.

The EAT held that employees can only bring an action for failure to provide information under Reg 13 TUPE against their employer. The only method that they can seek compensation from the transferee is to bring a claim against the transferor for breaching Reg 13(2), who then gives notice to the transferee under Reg 15 and makes them a party to the proceedings.

An order for compensation against the transferee will only be awarded if the employees can establish that the transferor is in breach of their Reg 13(2) obligations, and the transferor shows that it was not reasonably practicable for them to perform their duty because the transferee had failed to provide information to the transferor under Reg 13(4).

As the case against the transferor had settled, the employees could not bring an action against the transferor, so the claim against the transferee failed.