• Collective Redundancy and TUPE Consultation: Failure to Provide Agency Worker Information
  • March 8, 2013
  • Law Firm: Faegre Baker Daniels - Minneapolis Office
  • The Employment Tribunal in Unison v London Borough of Barnet and another ET/3302128/2012 has made protective awards of between 40 and 60 days' pay per affected employee against an employer who failed to adequately disclose agency worker information during collective redundancy and TUPE consultation.

    The London Borough of Barnet placed 97 employees at risk of redundancy as a result of a series of redundancy and transfer exercises. This triggered collective consultation obligations under both the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA') and theTransfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE'). TULRCA and TUPE oblige an employer to disclose prescribed information regarding its agency workers to employee representatives. The Borough provided some information about its agency workers but fell short of TULRCA and TUPE requirements. The Tribunal made protective awards to all affected employees, including those who had escaped redundancy and transferred under TUPE. Varying levels of award were made. To decide on the appropriate levels, the Tribunal considered how far it should reduce the maximum award, bearing in mind that the required information was easy to produce and that the Borough had been made aware that the unions needed this information to properly progress the consultation process.

    This is an important reminder to employers about the punitive nature of awards for failure to comply with the prescriptive informing and consultation obligations in collective redundancy and TUPE situations. The obligation to provide information about the use of agency workers was only recently introduced (in October 2011) but it is clear from this case that no concessions will be made as a result. By way of reminder, the maximum awards are 90 days' actual pay per affected employee under the collective consultation obligations in TULRCA and 13 weeks' actual pay per affected employee under TUPE.