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21 March 2013
Employment Appeal Tribunal (EAT)
Langstaff J, Miss J Gaskell and Mrs G Smith
TUPE requires employers to arrange for the election of employee representatives for the purposes of information and consultation about a TUPE transfer. The election must, so far as reasonably practicable, be fair. All affected employees are entitled to vote. If the employer does not comply with these rules, any affected employee may complain to an employment tribunal. The tribunal may award up to 13 weeks' pay.
The employer breached these rules in two ways. First, it arranged for the election of employee representatives at a time when B (one of the 18 employees affected) was not present, so he did not have an opportunity to vote. Secondly, the results for the second representative were tied. The employer then decided which of the two second placed candidates should be elected - whereas it should have allowed the employees to decide how the tie would be broken.
These were two technical minor breaches. The EAT awarded two weeks' pay each to the two complainants.
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The status of employment rights on the transfer of an undertaking is an extremely complex area of...