The EAT has ruled on who might be “affected employees” for the purposes of consultation under TUPE regulations. The case involved an insolvent company and there were plans to transfer both parts of the undertaking but eventually the liquidator transferred only one part, with the other part being closed down. Employees in the part that was closed down were dismissed and brought proceedings for, inter 54 alia, breach of the information and consultation obligations under regulation 13 of TUPE.

The claim was against the transferee as well as the employer by reason of the joint liability provision under regulation 15 of TUPE. The EAT held that the claimants were not “affected employees” by reason of having been excluded from the eventual transfer, notwithstanding the original intention that they would be included. In relation to the eventual transfer of the part in which the claimants were not employed, the EAT held that such indirect impact as that may have had on the part in which they were employed did not make them “affected employees”.

In relation to the closure of the part the claimants did work in, the EAT held that as regards the earlier intended transfer of both parts of the business, no claim could be brought in respect of a transfer which had not in fact proceeded. http://bit.ly/ZTxBhc