Obligation to Consult Under TUPE Triggered Even by Minor Administrative Changes

In the recent case of Todd v Strain & others (EAT 2010), it was held that minor administrative changes (including a change to the date on which employees would be paid) were capable of constituting "measures" under TUPE and accordingly gave rise to a duty to consult the workforce.

Todd was the owner of a care home which was sold in January 2008.  TUPE applied to the sale and a number of employees transferred to the buyer.  There was no election of employee representatives and only one brief meeting was held with the employees prior to the transfer.

Following the transfer, a number of minor changes were made to the employees' terms and conditions, including a change to the date on which employees were paid.  A multiple claim was brought by 32 employees for failure to elect appropriate representatives and failure to inform and consult.  The Tribunal upheld their claims in full and awarded the maximum compensation of 13 weeks' pay to each employee.  It also held that, as the buyer was not at fault, only Todd was liable to pay the award.

Todd appealed against the Tribunal's decision.  The EAT agreed with the Tribunal on liability;  the EAT said that the changes, while minor and administrative, were not an inevitable consequence of the transfer and therefore constituted "measures", triggering an obligation to consult with appointed representatives.  However, the EAT reduced the compensation payable to the employees to seven weeks' pay, recognising that some limited information had been given to the employees prior to the transfer and that the measures in question were not of great significance.  The EAT also held that, in accordance with Regulation 15(9) of TUPE, Todd and the buyer were jointly and severally liable to pay the compensation, despite the fact that the buyer had not been at fault. 

This is a warning to employers on a number of levels.  It shows the Tribunal's willingness to find that even minor changes can constitute measures under TUPE, triggering the obligation to consult.  It is also a reminder that a buyer is jointly and severally liable with the seller, even where the buyer has no input in the pre-transfer process.  Employers are therefore advised to consider early on whether TUPE might apply to a transaction and if so, to cooperate with the opposite party to ensure that consultation obligations are met.