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On a TUPE transfer, the transferor must provide employees
affected by the transfer with certain information, including the measures it
envisages the transferee will take. The transferee must tell the transferor
what measures it envisages taking (regulation 13(4)). If it does not, but the
transferor has provided its affected employees with all the information it has,
then the only remedy affected employees have is against the transferor. If
employees sue the transferor, the transferor has a defence (regulation 13(9))
that there were special circumstances (the transferee’s failure to provide the
information) which made provision of the information not reasonably
practicable. But to use that defence, it must give the transferee notice that
it intends to use that defence; the transferee then becomes a party to the
proceedings (regulation 15(5)).
This case shows that affected employees cannot simply bring a
claim against the transferee. The claim must be against the transferor.
MFSL won a contract to provide housing maintenance services to
a local authority. It was accepted that TUPE applied. The transferee did not
give the required information about the measures it proposed to take in
relation to transferring employees. As a result, the transferor could not give
that information to the employee representatives.
The employees sued the
transferee but either withdrew or settled their claims against the transferor.
The tribunal, upheld by the EAT, dismissed the claims against the transferee
because TUPE only provides a remedy for failure to inform against the
transferor - the employer at the time of the alleged breach.