Arranging the election of employee representatives for informing and consulting on a TUPE transfer

By Darren Newman, Brightmine Consultant Editor

Where an employer is party to a TUPE transfer, either as the transferee or the transferor, reg.13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) requires it to inform and, where relevant, consult with “appropriate representatives” of the affected employees.

The affected employees include those employees who will be affected by the proposed transfer or measures taken in connection with it, not only those whose employment will transfer.

There is always an obligation on the parties to provide the specified information to employee representatives, but the obligation to consult arises only if the party anticipates taking measures in relation to affected employees in connection with the transfer. Each party has to inform (and, where appropriate, consult with) only its own affected employees. The transferor is not obliged to consult with affected employees about measures envisaged by the transferee although it does have to inform them about those measures.

Where the affected employees are covered by union recognition, the representatives to be consulted are those of the trade union concerned. However, where there is no union recognition in place, the employer has a choice. It can either carry out the consultation with established employee representatives (such as a staff committee) or arrange for an election of representatives specifically for the purpose of information and consultation on the transfer.

This guide is concerned with how to organise and run such an election of employee representatives, in accordance with reg.14 of the TUPE Regulations 2006.

In this guide, learn about:

• Small businesses and transfers of fewer than 10 employees
• The number of representatives
• Term of office
• Timings
• Conducting the election
• Nominations
• Insufficient nominations
• Election addresses
• The rights of candidates and voters
• Methods of voting
• The ballot paper
• The ballot box
• The voting booth
• Marking the ballot
• Timing of the ballot
• Absentee ballots
• Counting the votes
• Announcing the result
• Failure to elect representatives
• Loss of a representative

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