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Shields Automotive Ltd v (1) Langdon (2) Brolly - TUPE consultation process must provide for those with entitlement to vote to do so [2013] EAT

Regulation 14 TUPE 2006 breached where process fails to provide for those with entitlement to vote to be enabled to do so

This appeal raises the question of liability and consequent compensation for alleged breaches of regulations 13 and 14 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). Regulation 13 is headed, “Duty to Inform and Consult Representatives”. Those representatives are defined as appropriate representatives by regulation 13(3) if they are under 13(3)(b)(i) employee representatives appointed or elected by the affected employees.

Shields tried to comply with the requirements of TUPE 2006 for consultation and information, but failed to provide for the election of appropriate representatives in a manner which complied with reg.14. An election was called at 2pm on a day, with voting to be completed by 5pm, when it knew that an employee, Mr Brolly, would be absent till the next day, without showing any good reason why it could not have waited for him to return. Shields did not try and communicate with Mr Brolly. The result was that one employee was clearly elected, but there was a tie for the next of two posts. Rather than telling any of the employees or candidates about this, the manager chose one of them. The Employment Tribunal held this unfair and upheld a complaint made by each of Mr Langdon and Mr Brolly that Shields had failed to comply with the requirements of Regulations 13 and 14. It upheld their claims and awarded Mr Langdon £1,384.62 compensation and Mr Brolly £3,230.71, those sums representing respectively two weeks and seven weeks pay.

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