Employers have various obligations to inform and consult employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). In Allen and ors v Morrisons Facilities Services Ltd, the Employment Appeal Tribunal (EAT) held that employees of the transferor cannot bring against a claim against the transferee for failing to provide information to the transferor.
Unite the Union instructed Thompsons to act on behalf of its members.
When three housing maintenance contracts between Leeds City Council and its contractors came to an end in spring 2011, the Council awarded two of them to new providers - Morrisons Facilities Services Ltd and Mears. About four or five hundred employees transferred under TUPE to the two new contractors in April and May 2011.
The employees brought a claim against Morrisons under regulation 15(1)(d) alleging that, as a transferee, the company had not complied with their information and consultation obligations under regulation 13(4). As a result, the transferor (their previous employer) could not comply with the duty to provide information about the measures which the transferee might take in relation to employees transferring over under regulation 13(2)(d).
Regulation 13(4) states that the transferee shall give the transferor such information as will enable the transferor to perform the duty imposed on it under regulation 13(2)(d). This is the duty to give employee representatives information about the measures which the transferor envisages the transferee will take in relation to any affected employees who will become employees of the transferee after the transfer.
Regulation 15(1) (d) states that if an employer fails to comply with a requirement of regulation 13, any employees affected by that failure may bring a complaint to an employment tribunal on that basis.
The tribunal dismissed the claim, holding that it was bound by the decision in Mitie Group v Mullineaux, in which the EAT held that affected employees did not have an individual right to complain when a transferee failed to provide information to the transferor under regulations 13(2)(d) and 13(4).
The EAT dismissed the appeal, holding that regulation 13(4) did not impose an obligation on a transferee to provide information to employees of the transferor. Instead, it imposed an obligation on the transferee to provide information to the transferor, so that the transferor could inform their employees of measures which they envisaged the transferee would take in relation to employees who were affected by the transfer.
Regulation 13(4) together with 13(2)(d) only provided for a "cross-over" of information from the transferee to the transferor. Affected employees of the transferee could therefore bring a claim against the transferee; and affected employees of the transferor could bring a claim against the transferor but TUPE did not provide for employees of the transferor to bring a claim against the transferee, even if they became employees of the transferee post transfer.
As the claimants' employer at the time of the alleged breach of regulation 13(4) was the transferor, not Morrisons Facilities Services, the only way the claimants could get compensation from the transferee for breach of regulation 13(4) was to pursue a claim against the transferor for breach of regulation 13(2)(d); it was then for the transferor to give notice to and join the transferee as a party to the proceedings.
This case demonstrates the practical problems of TUPE for transferring employees. The EAT accepted that there is a hole in the TUPE legislation, but declined to close it. The net result is that a transferee owes no direct duty, pre or post transfer, to the employees who may be most affected by the transfer.