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TUPE – A more measured approach needed

10 September 2010

The TUPE regulations require outgoing employers to inform and consult with employee representatives if they envisage taking measures in respect of employees. Outgoing employers rarely take such measures, or so we thought.

In Todd v Strain the transfer happened on 4 January 2008. The outgoing employer paid wages for 1 to 3 January shortly after the transfer, rather than at the end of the month, estimating the PAYE deductions. The Employment Appeal Tribunal decided that this was a “measure” that required consultation. This decision means that seemingly harmless administrative steps needed in TUPE transfers that have no adverse consequences for employees are ‘measures’ requiring consultation – an obligation to be taken seriously, since an Employment Tribunal can award up to 13 weeks’ pay per employee for a failure to comply.

Such a literal interpretation of the regulations is surely not what was intended?

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