Legal Article - Employment Law

Information and Consultation Requirements

Both the old and the new employer must inform and consult elected representatives of the workforce about the proposed transfer and any measures, which will affect the employees they represent. The representatives may be elected ad hoc when needed, or can be elected on a permanent basis.

Where staff is covered by recognition agreements with independent trade unions, the employer may choose to consult either the union or non-union elected representatives. How representatives are elected is entirely a matter for the employer and employees concerned.

Once elected, the representatives must be allowed access to the employees affected and must be provided with appropriate accommodation and other facilities. The representatives also have the right to reasonable time off with pay during working hours to fulfil their duties.

The information must be provided sufficiently in advance of the transfer to give adequate time for consultation to take place. The information to be provided must include

• Notification that the transfer will take place, its approximate timing and the reasons

• The legal, economic and social implications of the transfer for the affected employees

• Whether the employer intends to take any action which will affect the employees and, if so, what

• Where the previous employer is required to give the information, the activities, which the prospective new employer processes to carry out.

The consultation must take place with a view to reaching agreement. During these consultations the employer must consider and respond to any representations made by the representatives and if they reject these representations, they must state the reason.

Failure to comply with these requirements means the representatives can complain to an industrial tribunal. The affected employees can also complain to an industrial tribunal when an employer has neither consulted with elected representatives nor taken steps to arrange for the election of representatives.

Compensation of unto four weeks’ pay for each affected employee may be awarded.


Published: 27 May 2011


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