It’s TUPE Time – and Size Matters…

WynLewis

Can you hear fanfares of trumpets?

You should. Because starting today, 31 July 2014, employers with fewer than 10 employees (i.e. employers with 1 to 9 employees, but not employers who have 10 or more employees) no longer have to invite those employees who are affected by a TUPE transfer to elect representatives with whom to inform and consult about that transfer. Instead, you can inform, consult and deal directly with those employees, without the risk of paying up to 13 weeks’ pay as compensation.

Perhaps there are no fanfares because this change is of little practical significance.

The reasons are that many small employers (still) don’t have TUPE on their radar and don’t inform and consult with employee representatives anyway and their employees don’t know they should. Or, even if they do know about their TUPE obligations, they don’t go through with the hugely artificial process of electing and speaking with representatives (which duplicates talking to everyone anyway) because employees don’t understand the point of (or want) representative TUPE consultation.

What the Government should have done when updating TUPE, was to remove the obligation to inform and consult by reference to the number of affected employees (not the number of actual employees). This would have meant that a TUPE transfer – even from a larger employer – could have been simplified if fewer than 10 employees were affected, regardless of the size of the overall workforce. Either the Government missed a trick, or it didn’t trust employers to do the right thing.

So we are where we are.

Consequently, small employers are now off the hook and need only deal with employees individually. Whereas larger (but still small) employers still have to go through the process of electing representatives. It’s all a bit tedious.

Is there a solution?

Possibly: even if there are 10 or more employees, ask the affected employees to elect the same number of representatives as there are affected employees. That may then satisfy the collective and individual requirements by creating a group of representatives that is the same as the group of affected employees.

Simples…