TUPE: Administrative Changes amount to “Measures”

In Todd v Strain and ors, the EAT has held that changes to pay arrangements following a TUPE transfer were “measures” and therefore the employer should have informed and consulted with the employees about the change before the transfer.  Failure to do so was in breach of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

Mr Todd was the owner of a care home. In November 2007, Mr Todd announced the sale of the care home to Care Concern.  No detailed information was given at the meeting, which only about a third of staff attended, and no information was given about the proposed change in the date of payment of salaries.  It was found that Mr Todd had not complied with the inform and consult obligations and he had not elected employee representatives.  The Tribunal awarded 13 weeks’ pay to each member of staff affected, payable by Mr Todd only, as Care Concern was not found to be at fault for the failures. 

The EAT considered that although the changes were administrative in nature, they were not inevitable and therefore there is a requirement to inform and consult.  Furthermore, TUPE did not prescribe that a measure's effect must be disadvantageous to employees in order to trigger the requirement to consult.  The duty to consult requirement is to enable such transitional arrangements to be explained to employees and to reassure them, if necessary, that they will not be prejudiced in any way.  Mr Todd should have therefore informed and consulted with the staff. 

In some instances it will be hard to determine whether administrative changes are inevitable, as there is a fine line between the two.  Therefore, employers concerned about which side of the line they fall on should err on the side of caution and consult.