TUPE Consultation Done Right. Not Just Done.

Regulation 13 of TUPE 2006 imposes two separate obligations: the duty to inform and the duty to consult. These are not the same thing, and conflating them is one of the most common compliance failures in FM contract transitions.

Information is one-directional: you tell employees what is happening, why, and what the implications are. Consultation requires genuine two-way dialogue — you must consider and respond to any representations made by employee representatives. A briefing session with no mechanism for response is not consultation.

The obligation to inform and consult extends to all 'affected employees' — not just those who are transferring. This includes any employee of the outgoing or incoming employer whose employment relationship or working conditions may be affected by the transfer, the measures taken in connection with it, or the transfer itself.

In practice, this often means employees in shared services, management structures, or support functions who are not directly transferring but whose roles may change as a result of the contract award. Failing to include them in the consultation process is a common and costly oversight.

Under Regulation 13(2), the information provided to employee representatives must cover four specific areas: (1) the fact that a relevant transfer is to take place, when it is to take place, and the reasons for it; (2) the legal, economic, and social implications of the transfer for affected employees; (3) the measures which the employer envisages taking in connection with the transfer, or if no measures are envisaged, that fact; and (4) if the employer is the outgoing employer, the measures which the incoming employer envisages taking.

All four must be provided in writing, long enough before the transfer to allow meaningful consultation. 'Long enough' is not defined in the regulations — but employment tribunals have consistently found that notification on the day before transfer does not meet the standard.

A failure to inform or consult under Regulation 13 can result in a compensation award of up to 13 weeks' actual pay per affected employee. Crucially, this liability is joint and several between the outgoing and incoming employer — meaning both parties can be held liable for the other's failures.

On a 50-person transfer with average weekly pay of approximately £540, the maximum exposure is approximately £351,000. This is not a theoretical risk — it is a live liability that materialises in FM tribunal claims every year.

A defensible consultation process has five components: (1) early identification of all affected employees; (2) election or recognition of appropriate representatives; (3) written notification containing all four mandatory categories; (4) a genuine consultation period with documented responses; and (5) a written record of the entire process, including any representations made and the employer's response.

The documentation is as important as the process itself. In a tribunal, the burden of proof is on the employer to demonstrate that consultation took place. Without contemporaneous records, that burden is very difficult to discharge.