TUPE—Employer's Duty to Inform and Consult

The Employment Appeal Tribunal (EAT) held in Royal Mail Group Ltd v Communication Workers Union UKEAT/0338/08/DA that where an employer genuinely believes that TUPE does not apply, it will not automatically be in breach of its information and consultation obligations by failing to inform employees of the correct legal position.

Post Office Limited operated a network of post offices and was a wholly owned subsidiary of Royal Mail Group Limited (Royal Mail). Due to losses, Royal Mail transferred some post offices to franchisees. The affected employees were told that they would not transfer to the franchisees but would either become voluntarily redundant or be redeployed within Post Office Limited. No direct consultation with the recognised union, Communication Workers Union (the Union), took place.

None of the affected employees brought claims post transfer. However, the Union successfully brought a claim in the Employment Tribunal on the grounds that there had not been proper information or consultation, as required by TUPE. The EAT overturned the Tribunal's decision and held that while there is an obligation for employers to provide their view of the legal implications of the transfer, they are not automatically in breach of their information and consultation obligations under TUPE if that view is incorrect.