TUPE: Employee Representatives

In Hickling (t/a Imperial Day Nursery) and others v Marshall, Ms Marshall was employed by the nursery from September 2007 until February 2009.

On 1 January 2009 the nursery became incorporated and it was later agreed that this incorporation amounted to a TUPE transfer.  The employer failed to elect employee representatives (there being no Trade Union) and did not inform and consult in respect of the transfer, either via the representatives or directly to Ms Marshall and her colleagues. 

The employer argued that Ms Marshall could not bring this claim, as she was not an employee representative.  The ET found that she was entitled to bring a claim for compensation on an individual basis as there had been no election or attempted election of employee representatives, as required by TUPE. It therefore awarded 13 weeks’ pay plus costs to Ms Marshall.    

At the EAT,  although the costs award was set aside, the employer’s failure to elect employee representatives and then consult still proved very costly. 

This case should act as a cautionary tale for employers - TUPE can apply even when the change to the employer is seemingly very small and perhaps inconsequential.  It shows that the consequences of not complying with the regulations can be very costly indeed.