TUPE Update - Subjective Test
29 October 2009
The Court of Appeal confirmed that the TUPE information test is subjective – this is about ensuring that consultation by the employer to the affected employees is undertaken otherwise employers could face up to 13 weeks actual pay for each affected employee and therefore a breach of the Regulations could be very expensive.
The issue that found its way to the Court of Appeal is the test to be applied in determining whether or not the employer had discharged its obligation to give the information to the affected employees regarding any legal, social and economic implications.
The test on this was whether the employer has to say what they honestly believe to the legal, social and economic implications or do they have to get it right. The Court of Appeal’s decision was that the test was subjective but that the employer must state what they honestly and genuinely believe and do not have to warrant that this belief is correct or legally accurate.
This applies to both the transferor (old employer) and transferee (new employer). Therefore, it is best to always include this statement in any TUPE consultation and documentation to affected employees.