UK: Consequences Of Failing To Inform And Consult

Employers who fail to inform and consult employees in connection with a TUPE transfer may have to pay a penalty of 13 weeks' gross pay to all affected employees. The recent case of Shields Automotive Limited v Langdon & another guides employers on the size of the award where there has only been a minor breach of the employer's duties. The case illustrates how easy it is to make a mistake - in this instance a management decision on running an election for an appropriate representative. It serves as a reminder of how employers should conduct an election to avoid any liability.

Before looking at this case, it is worth setting out the general principles.

Consequences of failure to inform and consult

In a TUPE transfer, both transferor and transferee must inform and consult with recognised trade unions or elected employee representatives in relation to any affected employees. If there is no trade union, these representatives will either be existing employee representatives or newly elected representatives for the purposes of the transfer. There are special rules about the election process, but the principle is that employees are entitled to vote, and they (rather than the employer) must choose the representatives. Breach of this duty can be costly: as the maximum Tribunal award is 13 weeks' gross pay for each affected employee, and there is no limit on the amount of a weeks' pay, employees can potentially receive 13 weeks' gross pay on top of any pay received during the same period. Ultimately, any Tribunal award, however, should be "just and equitable having regard to the seriousness of the failure of the employer to comply with its duty". Furthermore, the transferee and transferor will both be liable for any Tribunal award payable to the employees.

A complete failure to consult

Following a number of important cases decided by the Employment Appeal Tribunal (EAT), the Tribunals now tend to apply the following principles:

  • Compensation is intended to penalise the employer for its breach, not to compensate the employee(s) for any loss suffered
  • Focus is on the seriousness and deliberateness of the employer's default, but the tribunal's discretion to do what is just and equitable in all cases is wide
  • Where there has been no consultation at all, the starting point of the maximum 13 weeks' pay should only be reduced if the tribunal feels there are particular mitigating circumstances
  • The above guidance should not be applied mechanically to cases where some information has been given or some consultation has occurred

Minor breaches

In Shields Automotive Limited v Langdon & another, the employer tried to inform and consult, but made technical errors. It called an election at 2pm with voting to be completed by 5pm the same day, though one employee (Mr Brolly) was on his day off, and another (Mr Langdon) abstained in protest. When votes tied for the second of the two posts, rather than telling the employees or candidates about this the employer chose from the tied candidates itself, thinking this would be most practicable.

The Tribunal found the employer's decision to proceed, without showing a good reason why the election couldn't have waited for Mr Brolly's return on the following day, to be unfair. Conversely, the EAT said it was primarily a question of whether the rules had been followed, and gave the following guidance:

  • The award ensures employers are mindful of the duties to consult and inform
  • Genuine attempts to inform and consult, even if technically insufficient, merit a lesser punishment than where no steps have been taken at all
  • Employers must make reasonably practicable arrangements to ensure the election is fair. If there is a reason why it cannot reasonably practicably be taken over a longer time-scale, the employer must prove it to the Tribunal
  • Employees must get the chance to exercise their right to vote. Where no such opportunity can be had, the employer should explain why
  • Employee representatives should be elected or appointed by affected employees. Here, the employer should have shown why it wasn't reasonably practicable to tell employees about the tie and allow them to resolve it

Though the Tribunal found the employer to be in breach of its duties as a result, its efforts to inform and consult, and the technical nature of the breach, were accounted for in assessing the compensation to be awarded to the affected employees. On balance, the EAT awarded Mr Brolly 3 weeks' pay (reduced from the Tribunal's award of 7 weeks' pay), and upheld Mr Langdon's award of 2 weeks' pay, as he had been able to vote but chosen not to.

Quick reference table summarising other relevant cases with the awards made

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.