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29 January 2010 / John McMullen
Issue: 7402 / Categories: Features , Employment
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TUPE or not TUPE

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Part 1: Consulting on redundancy & TUPE transfers by Dr John McMullen

Recent months have seen a number of interesting cases on information to and consultation with employee representatives, both in the context of multiple redundancies and transfer of undertakings (TUPE). All of them pose challenges in their application and scope. This is the first of two articles noting these developments.

The timing of consultation

Under the Trade Union and Labour Relations (Consolidation) Act 1992,
s 188 (as amended) an employer proposing to dismiss as redundant 20 or more employees of one establishment within a period of 90 days or less, must consult about the dismissals with the appropriate representatives of any of the employees affected by the proposed dismissals, or who may be affected by measures taken in connection with those dismissals.

“Proposal” to dismiss has widely been regarded as something approaching, albeit preceding, a decision to dismiss. Under ageing UK case law this narrow view of “proposing” would mean that consultation does not have to begin until a fairly advanced stage

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