Unite the Union v 1) Interserve (Facilities – Slough) Ltd 2) Osborne Property Services Ltd — 2021

The tribunal heard a complaint by Unite the Union that the First Respondent had failed to inform and consult about the transfer of the office maintenance contract at Slough Borough Council to the Second Respondent on 1 December 2017. It found, on balance of probabilities, that a valid and recognised Trade Union Recognition Agreement existed between Unite and the First Respondent immediately before the transfer, that it related to the non-managerial bargaining unit covered by the agreement, and that the agreement had not been de-recognised before the transfer.

The tribunal found that the Second Respondent's intended de-recognition of Unite was a proposed measure for the purposes of regulation 13(2)(d) TUPE, rather than merely a legal implication of the transfer. Mr Morris was treated as an appropriate representative of the Claimant, and the First Respondent was able to consult with him and the elected staff representatives on other transfer matters. However, the First Respondent did not inform the appropriate representatives about the intended de-recognition early enough to allow meaningful consultation. It first became aware of the issue on 22 October 2017, but the consultation meeting dealing with it did not take place until 16 November 2017, shortly before transfer.

The tribunal rejected the Respondents' case that special circumstances made earlier information and consultation not reasonably practicable. It referred to the usual meaning of special circumstances in collective redundancy law and found that the First Respondent knew of the intended de-recognition in time to raise it earlier, while the Second Respondent declined to provide a rationale or attend the meeting. It therefore held the complaint against the First Respondent well-founded and made a declaration under regulation 15(8)(a), with the First and Second Respondents jointly and severally liable under regulation 15(9).

On remedy, the tribunal applied regulation 16(3) TUPE and the authorities it cited on appropriate compensation, including that the award is penal in nature. Taking account of the limited delay, the existing consultation on other transfer matters, the lack of malice, and the fact that earlier consultation would not have changed the Second Respondent's decision to de-recognise Unite, it assessed appropriate compensation at one week's pay for each affected employee listed at B262. The precise amounts were left to be determined at a further remedy hearing if needed.