UK: TUPE And Collective Redundancies: Information Regarding Agency Workers

TUPE And Collective Redundancies: Information Regarding Agency Workers

When the Agency Workers Regulations ('AWR') were brought into force amendments were made to Regulation 13 of the TUPE Regulations and the collective consultation requirements under Section 188 of TULRCA which require certain prescribed information to be provided to appropriate representatives of affected employees in advance of the transfer or in advance of any collective redundancies being made.

AWR amended TUPE and TULRCA from 1 October 2011 so as to require the employer to provide 'suitable information' relating to the use of agency workers (if any) by the employer in advance of the transfer or in advance of any collective redundancies being made. 'Suitable information' means:

• The number of agency workers working temporarily for and under the supervision and direction of the employer.
• The parts of the employer's undertaking in which those agency workers are working.
• The type of work those agency workers are carrying out.

The term 'suitable information' goes wider than the other information that needs to be provided under TUPE and TULRCA, as it relates to the employer's use of agency workers throughout its business and not just in the part being transferred or affected by the redundancy process and is not limited to those agency workers who are affected employees for the purposes of TUPE or TULRCA.

In one of the first cases to be heard by a Tribunal regarding these provisions, it has been held that Barnet Council had breached its obligations under TUPE and TULRCA by failing to provide UNISON with information on the number of agency workers employed by Barnet Council in advance of two transfers which were due to take place together with proposed redundancies. The Union had requested the information in order to try to protect Council employees from the proposed redundancies. There was, in fact, no requirement on the Union to request the information; the information should have been provided by the Council under TUPE.

The Tribunal described Barnet's failure as 'relatively serious' and made protective awards of 60 days pay in respect of each affected employee for failure to provide the information under TULRCA and 40 and 50 days pay (for two transfers) in respect of each affected employee for failure to provide the information under TUPE. This will amount to several hundred thousand pounds in compensation. Barnet is considering the decision and whether to appeal.

The case reminds employers of the importance of complying with their duties to inform and consult under TUPE and TURLCA, and the significant financial consequences of not doing so. This is particularly so in the public sector, where outsourcing is prevalent and redundancies are being made as a result of changes or reductions in services.