RMT v Balfour Beatty

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) state that employers have to give certain information “long enough” before a transfer to consult the “appropriate representatives of any affected employees.”

In RMT v Balfour Beatty the tribunal said that the company was in serious breach of its duty to inform and consult, and awarded the employees ten weeks’ compensation.

The union instructed Thompsons to act on its behalf.

TUPE regulations

Section 13(2) of TUPE says that the union must be informed before the transfer that:

  • the transfer is taking place, when and why
  • there may be legal, economic and social implications for affected employees
  • measures the transferring employer envisages taking in relation to affected employees (such as redundancies) or that no measures will be taken
  • measures the new employer envisages taking in relation to affected employees or that no measures will be taken


The information must also be provided to representatives “long enough” before the transfer to give reasonable time for consultation and must be done with a view to getting the employees’ agreement.

Basic facts

Balfour Beatty decided to transfer four workers who were operating a piece of machinery on tracks in the Midlands to a company called Fastline (a subsidiary of Jarvis) on 25 June 2006.

The employees were told that there would be no changes to their terms and conditions of employment, but the consultation document made clear that they would be required to work out of a different depot.

Balfour Beatty was aware that the location where the four started their day was a “hot issue.” It was also aware that, because they had been transferred before, they all had different contractual entitlements to the provision of transport to and from work and different “reporting to depot” arrangements.

The company claimed it gave the information to the union at meetings on 26 April and 12 May. The union claimed it did not receive the information until early June, which was not “long enough” before the transfer.

“Long enough”

The tribunal agreed with the union. It said that even if the company had given the information to the “affected employees” on 26 April, it was not in compliance with the legislation because “no appropriate representative” was present.

As for the meeting on 12 May, the tribunal said that as neither of the union representatives could recall it, and the company could not even “unequivocally state” that it had given the actual or proposed date of the transfer to those who attended, it would be unsafe to conclude that the information was given before 6 June.

It decided therefore that there had been a breach of this part of the regulations.

Implications of the transfer and measures to be taken

Section 13(2) also requires employers to tell affected employees of any legal, economic or social implications of the transfer and of any measures they may take in connection with it. Even if they do not intend to take any measures, they have to inform employees accordingly.

The company conceded that it did not tell the employees that it would not be taking any measures, but argued it was a mere “technical” breach. The tribunal again disagreed, saying that it was important for employees to have the information to avoid being “faced with an uncertain programme of events”.

It also said the Balfour Beatty failed to give adequate information about measures that Jarvis might take, and the information they did provide was ambiguous and incomplete. It was not persuaded that the fault lay with Fastline, saying that there was no evidence that Balfour Beatty asked them for the information.

Compensation

The tribunal concluded that Balfour Beatty was in serious breach of the duty to inform and that this resulted in disruption and aggravation for the affected employees. It awarded each of them ten weeks’ pay as compensation.