Getting to Grips with TUPE Consultation Obligations
When a business or service changes hands, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) makes sure employees’ contracts and terms transfer automatically to the new employer. And we’re not just talking about the contracts here, TUPE has some pretty strict requirements when it comes to consulting with employees.
Here at Darwin Gray Solicitors, a law firm that’s been listed on Companies House and regulated by the Solicitors Regulation Authority, our employment law team is always advising businesses on how to navigate these TUPE consultation duties, to avoid getting themselves into all sorts of legal trouble and make the transition as smooth as possible.
So What Do Employers Need to Do Under TUPE?
If you’re involved in a TUPE transfer, you need to keep your affected employees in the loop and make sure you’re consulting with them properly. It’s all about transparency, reducing uncertainty and making sure staff aren’t treated unfairly.
Under UK law, both the outgoing employer (that’s the transferor) and the incoming employer (that’s the transferee) have got some pretty important responsibilities to:
- Give employees or their reps a heads-up about the transfer.
- Have a proper chat with employees if there are going to be any changes.
- Give them all the key details such as the date, reason for the transfer, and any legal, economic or social implications.
Failure to meet these obligations can leave you facing compensation bills of up to 13 weeks’ pay per employee – so it’s pretty essential you get it right.
At Darwin Gray, our employment solicitors have been recognised in The Legal 500 UK for their “incredibly responsive, commercial and cost-effective” advice, and we regularly help employers meet these requirements in a way that works for everyone.
Who Do You Need to Consult Under TUPE?
As an employer, you need to be consulting with:
- Recognised trade unions, if one exists for your business, or
- Elected employee reps, if there’s no union in place.
If you’re one of the lucky ones with fewer than 10 employees and no reps, you can just talk directly to your staff.
But it’s not just about ticking a box, the consultation needs to be meaningful. You need to explain the potential impact of the transfer, have a proper discussion about any proposed changes, and really listen to what your employees have to say before you finalise anything.
Our employment specialists at Darwin Gray, who are ranked in Chambers UK 2025 for their expertise in employment and corporate law, can give you the tailored guidance you need to make sure your consultations are both compliant and practical.
The Key Information Employers Need to Share
Both transferor and transferee employers have got some clear duties to share certain information.
The transferring employer needs to give:
- The lowdown that a transfer is happening.
- The date and reason for the transfer.
- The potential implications for employees.
- Any measures the new employer is thinking of taking in relation to staff.
The receiving employer needs to let the transferring employer know what measures they’re planning to take after the transfer, such as any structural changes, new systems or redundancies, so that can be included in the employee communications.
At Darwin Gray, our team can help you manage these exchanges smoothly, to make sure you comply with TUPE and avoid any disputes during the transition.
Common Pitfalls for Employers to Watch Out For
Loads of employers trip up by consulting too late or not giving employees enough information. Consultation needs to start long enough before the transfer to allow for genuine discussion and feedback.
Some other things to watch out for include:
- Not electing reps correctly.
- Failing to document the consultation process.
- Forgetting that both transferor and transferee have got obligations to meet.
At Darwin Gray, we’ve got loads of experience in advising clients across all sorts of sectors, from education to healthcare and professional services, so we know what the practical challenges an employer might face, and we can deliver solutions that meet those operational and legal expectations.
What Happens if You Don’t Consult Properly Under TUPE?
If you fail to comply with TUPE consultation requirements, employees (or their reps) can bring a claim to an Employment Tribunal. And the consequences can be pretty serious:
- Protective awards of up to 13 weeks’ pay per employee.
- Reputational damage and loss of trust.
- Potential unfair dismissal claims if redundancies or changes are handled badly.
As you might have seen in The Times Best Law Firms 2023, we’re recognised nationally for our pragmatic and business-focused approach to employment law, and we can help you avoid all these costly pitfalls.
FAQs: TUPE Consultation Requirements for Employers UK
Q: When do I need to start TUPE consultation?
A: As early as possible, long enough before the transfer to allow for proper discussion and consideration of employee feedback.
Q: Who do I need to consult with under TUPE?
A: Trade union reps, employee reps, or directly with employees if you’ve got fewer than 10 staff on board.
Q: What if I don’t consult properly?
A: Employees might bring a claim to an Employment Tribunal, and that can leave you facing protective awards of up to 13 weeks’ pay per employee.
Q: Can both the old and new employer be on the hook?
A: Yeah, they both have a part to play and can be held accountable together if they mess up the consultation process.
Q: Can consultation be done via email or in a meeting?
A: Absolutely, as long as it’s done openly, properly documented and employees can actually get their questions answered.
Why Employers Pick Darwin Gray for TUPE and Employment Law Services
With loads of experience in TUPE, restructuring, and redundancy consultation, Darwin Gray LLP is one of the most well respected commercial and employment law firms in Wales. It being listed in the Legal 500 and Chambers UK gives a pretty good idea of just how good they are at what they do.
From big corporate deals to public sector outsourcing, Darwin Gray helps employers get to grips with TUPE consultation rules without losing their way on the way, so they can stay on the right side of the law and keep their employees happy.
