The Meaning of "Affected Employees" Under TUPE

The Employment Appeal Tribunal (EAT) held in Unison v Somerset County Council (1) Taunton Deane Borough Council (2) and South West One Ltd (3) UKEAT/0043/09 that under regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), the "affected employees" whose representatives the employer must inform and consult about a relevant transfer are (i) those who will or may be transferred, (ii) those whose jobs are in jeopardy by reason of the proposed transfer and (iii) those who have internal job applications pending at the time of transfer. The definition did not extend to others in the workforce who might apply in the future for a vacancy in the part transferred.

In 2007 Somerset County Council and Taunton Deane Borough Council transferred the bulk of their administrative work to South West One Limited, which they had jointly established with IBM which was to operate the company. There were 846 relevant employees who were given the option of either remaining Council employees and being seconded to South West One Ltd or having their employment transferred under TUPE to South West One Limited. All employees except for one opted to remain as Council employees.

There were issues concerning the position with regard to future recruitment by IBM and it was agreed at the last minute that IBM could recruit externally provided the proportion of Council employees seconded to the project remained at 70% or more. Unison complained that the Councils and IBM had failed to comply with the duty to consult as the last-minute revisions were measures taken in connection with the transfer about which there had been no consultation. The Tribunal dismissed Unison's complaint and this was upheld by the EAT. The EAT looked at the definition of "affected employee" and established that this refers to "those who will be or may be transferred or whose jobs are in jeopardy by reason of the proposed transfer, or who have job applications within the organisation pending at the time of transfer. We do not think that the definition extends to the whole of the workforce, nor to everyone in the workforce who might apply for a vacancy in the part transferred at some point in the future".