TUPE: Failure to Inform and Consult

The EAT has handed down its decision in Todd v Care Concern, in which the EAT held that an award of 13 weeks' pay should NOT be the starting point for failure to inform and consult where the employer has done something (albeit not everything) to comply with the statutory obligations.

In this case, the employer gave some information the transferring employees, but not enough. It also failed to elect employee representatives. Underhill P, giving judgment, distinguished Susie Radin (see the line of cases), stating that the 13 week award should only be the starting point if there has been a complete failure to engage in the information/consultation process (para 29).

The case also held that the obligation to inform is engaged even where the transferor does not envisage any 'measures' will be taken.