No need to consult workers who are not transferred

Where there is a relevant transfer under TUPE, a transferor is obliged to inform and, in certain circumstances, consult with appropriate representatives of ‘affected employees’. Failure to do so can result in claims for protective award of up to 13 weeks’ pay per affected employee.

Determining who is an affected employee is therefore important in determining both the employees in relation to who has a duty to inform prior to a TUPE transfer and the potential size of any protective award.

The definition of ‘affected employee’ found in regulation 13(1) of TUPE refers to employees affected by the transfer or the measures taken in connection with it. In an attempt to flesh this out, previous case law said that affected employees can be those who will be or may be transferred, those whose jobs are in jeopardy by reason of the transfer itself, or who have job applications pending at the time of the transfer…

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