FAQ/TUPE – for how long must TUPE consultation last?

TUPE is a complex area of employment law that raises a lot of questions for HR, particularly around consultation. One of the most common we’re asked to advise on is how long the consultation should last before a transfer takes place. It’s a tricky one, and there’s no straightforward answer – because the legislation doesn’t set a fixed period. But that doesn’t mean employers have complete discretion.

This often comes up when a business is selling part of its operation, outsourcing a service, or bringing one back in-house – and HR needs to plan the timeline. The duty to inform and, where appropriate, consult with employee representatives must be factored in, and timing is a key part of getting that right.

So, what’s the answer? On the line from Glasgow to help with that, Anthony Convery: 

Anthony Convery: “TUPE consultation is not like collective redundancy consultation where there are stipulated periods of time. There is no minimum consultation period in a TUPE situation but what the law says is that employers must inform and consult long enough before the transfer for meaningful discussion and engagement. So that means that the consultation period has to be reasonable given the circumstances of the transfer.”

Joe Glavina: “So how long should consultation last in practice?”

Anthony Convery: “That really depends on a number of factors. First of all, how complex the transfer is. If there's a straightforward transfer then it might only require brief consultation but if it's much more complicated, like if there's a large restructure, then it might need weeks or months. Another factor is that the number of employees affected. If it's a large-scale transfer then there will obviously need to be more time, particularly if there are redundancies or there are proposed contractual changes as a result of the transfer. Then finally, the need to elect representatives also has an impact on the timeline because if employees don't already have representatives in place, so if there's no recognised trade union, then the elections will have to take place before the consultation can begin. Another thing to consider in a TUPE context is that the law allows for pre-transfer collective redundancy consultation. So where there are 20 or more redundancies proposed and those are proposed by the new employer, then with agreement of the outgoing employer the new employer has the opportunity to get in early and start collectively consulting with the transferring employees and that enables them to more easily meet the 30 or 45-day period of collective redundancy consultation that is required. So, if an employer is proposing 20 or more redundancies at an establishment within a 90-day period, then it's a requirement to consult for 30 days for collective redundancy. If an employer is proposing to dismiss 100 or more within a 90-day period, then it's a 45-day period of collective consultation.”

We have added this programme to our FAQs series of programmes. To find them just type ‘FAQ/TUPE’ in the search engine of the Out-Law website.