Information and consultation

Who must be consulted?

These requirements apply in respect of any employees who may be affected by the transfer, whether employed by the new or previous employers. An employer is required to inform and, if appropriate, consult either representatives of an appropriate recognised trade union or (where there is not an appropriate recognised trade union) elected representatives of the employees. An employer may inform/consult a recognised trade union for one group of employees and elected representatives for another.
Where the employer chooses to inform/consult an independent recognised trade union, the employer must deal with a representative of that union who is authorised by the union to carry on collective bargaining with that employer; that may be the shop steward, or the district union official, or, if appropriate, a national or regional official.

Where the employer chooses to inform/consult elected representatives, who must be employees of the company, he must take steps to ensure that representatives are elected in good time for information/consultation to be undertaken. There is no statutory requirement for permanent representation; it will be sufficient for an employer to arrange for elections as and when required.

Representatives need not be elected specifically for this purpose; an employer may inform/consult through an existing consultative body whose membership is elected, for example a staff council, provided that it is appropriate to inform/consult this body on this issue. It would not, for example, be appropriate to inform/consult a committee specifically established to consider the operation of a staff canteen about a transfer affecting, say, sales staff; but it may well be appropriate to inform/consult a committee which is regularly informed or consulted more generally about the company's financial position and personnel matters.

The legislation does not specify how many representatives must be elected or the process by which they are to be chosen. An employment tribunal may wish to consider, in determining a claim that the employer has not informed or consulted in accordance with the requirements, whether the arrangements were such that the purpose of the legislation could not be met. An employer will therefore need to consider such matters as whether:

• the arrangements adequately cover all the categories of employees who may be affected by the transfer and provide a reasonable balance between the interests of the different groups;
• the employees have sufficient time to nominate and consider candidates;
• the employees (including any who are absent from work for any reason) can freely choose who to vote for;
• there is any normal company custom and practice for similar elections and, if so, whether there are good reasons for departing from it.