Todd v Strain and ors
Employers must inform and consult appropriate representatives of employees if they envisage taking any “measures” in the event of a transfer governed by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). In Todd v Strain and ors, the Employment Appeal Tribunal (EAT) said that even minimal changes to pay arrangements could constitute “measures”.
Ms Todd, the owner of a care home in Port Glasgow, called a meeting of staff without notice on 20 November 2007. Only 18 or 20 of a total workforce of 64 were present when she told them that the home had been sold to Care Concern (GB) Ltd but that their jobs were safe.
There was no further consultation with the staff before the sale, which was a relevant transfer for TUPE purposes, in January 2008.
A number of care home employees subsequently lodged tribunal claims against both Ms Todd and Care Concern for failure to inform and consult appropriate staff representatives in breach of regulations 13(2) and 13(6) of TUPE respectively. In addition, they claimed that she had failed to arrange for the election of appropriate reps contrary to regulation 14.
Regulation 13(2) requires employers to inform reps of a number of things “long enough” before a transfer to enable the employer to “consult the appropriate representatives of any affected employees”.
Regulation 13(6) states that an employer who envisages taking any “measure” in relation to an affected employee must consult with the appropriate reps.
The tribunal agreed with the care home staff. It said that Ms Todd had failed to inform staff about a number of “measures” she envisaged taking which related to the way they would be paid in the days leading up to the transfer.
As this was a serious failure, the tribunal awarded the maximum compensation of 13 weeks to each employee, but dismissed the claim against Care Concern, saying it was not liable.
Ms Todd appealed, arguing that as she did not intend taking any “measures” under regulation 13(2), she was not obliged to consult under regulation 13(6). Likewise she had nothing to inform the staff about and therefore had no obligation under 13(2) either.
The EAT rejected her argument, saying that the obligations to inform and consult were completely separate. If her argument was correct, it would mean that employers would not even have to give employees “basic information that the transfer is to take place or its date” when the transferee was not considering taking any measures. It said this argument had been demolished by another EAT in Cable Realisations Ltd v GMB (weekly LELR 152), which said that even if the transferee did not envisage taking any “measures” in relation to the transfer, the duty to inform under regulation 13(2) still applied.
In any event, it agreed that in this case the changes to payment arrangements constituted “measures” under TUPE even though they were minimal. It said that any changes made to employees’ pay were liable to be “unsettling” for staff and part of the purpose of the duty to consult was to enable transitional arrangements to be explained.
However, it disagreed with the tribunal on the amount of compensation to be awarded, saying that Ms Todd had made an attempt to tell staff about the sale, however inadequate.
As the case of Susie Radin Ltd v GMB had established that awards should reflect the seriousness of the employer’s failure to consult, it reduced the compensation to 7 weeks.
Finally, the EAT held that Care Concern was also liable to pay the compensation as it was “jointly and severally liable” under regulation 15(9).
This decision again restates the point that liability for breaches of the information and consultation obligations must be made jointly and severally between the transferor and transferee, regardless of the lack of wrongdoing on the part of one party. This is particularly important where one of the parties has gone into liquidation. A party may choose to only enforce the judgment against the party in default where both employers are still solvent but the option to enforce against either party must be given by a tribunal.
The decision also confirmed that the duty to inform under regulation 13(2) is distinct from the duty to consult under regulation 13(6). Unfortunately, it also confirmed that the consultation ‘obligations’ under regulation13(2) are entirely voluntary.