Unison v Somerset County Council [2010] IRLR 207

TUPE imposes an obligation on the transferor and the transferee to inform appropriate representatives about a transfer and consult with those representatives where it is envisaged that measures will be taken in relation to affected employees.

“Affected employees” are defined as “any employees of the transferor or the transferee who may be affected by the transfer or may be affected by measures taken in connection with it”. “Affected employees” therefore clearly include those employees who are to transfer, but in this case the EAT had to consider who else can be regarded as falling within the scope of the term?

Somerset County Council and Taunton Deane Borough Council decided to transfer the bulk of administrative work in their Resources Directorates to a new joint venture company controlled by IBM. A large number of employees were seconded to the new company.               There were contentious negotiations over a staffing agreement which determined the extent to which future vacancies in the joint venture would be filled internally. The issue before the EAT was whether council employees at the time of the transfer, who were not working in the relevant parts of the Resources Directorates, were “affected employees” because their future job prospects would, without doubt, be affected by the staffing agreement.

The EAT held that “affected employees” are “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.” It rejected the contention on behalf of the union that “affected employees” also includes any employees of the transferor whose future career opportunities might be diminished by a change in the recruitment arrangements in the part transferred.