The judgment has been handed down in the EAT in a TUPE case concerning the issue of consultation, Sheena Todd v (1) M J Strain & Others (2) Care Concern (3) Mr R Dillon.

In this case, the seller of a care home business gave some limited information to employees about an impending transfer but failed to arrange for the election of ‘appropriate representatives’ as required by regulation 14 of the Transfer of Undertakings (Protection of Employment) Regulations 2006.  There was, therefore, no consultation with any representatives.

The Tribunal ordered the transferee to pay the maximum compensation for failure to inform and consult of 13 weeks pay but made no award against the transferee.

The EAT have held that the correct to find against the transferor on liability.  Their contention that there is no duty to inform unless the transferor was envisaging ‘measures’ on which it was necessary to consult was rejected.

However, the EAT determined that the Tribunal were wrong to award maximu compensation in circumstances where some (albeit inadequate) information had been provided and the ‘measures’ requiring consultation were of limited signficiance.  They therefore substituted an award of seven weeks’ pay.

They also found that the Tribunal were obliged by Regulation 15(9) to find the transferee jointly and severally liable with the transferor.