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Regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“the Regulations”) implements Article 7 of Council Directive 2001/23 of 12th March 2011 and deals with the key area of informing and consulting with employees where the Regulations apply.

In our previous blog post we highlighted when the Regulations apply i.e. where there is a transfer of an undertaking, business, or part of a business from one employer to another as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger.

Where the Regulations apply, both the transferor (original employer) and the transferee (new employer) must inform the representatives of the employees affected by the transfer of:

(a) the date or proposed date of the transfer
(b) the reasons for the transfer
(c) the legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them, and any measures envisaged in relation to the employees and
(d) any measures envisaged in relation to the employees

The transferor must give the above information to the employee’s representatives when reasonably practicable, but not later than 30 days before the transfer is carried out and in any event in good time before the transfer is carried out.

The transferee must equally give the above information to the employees representatives, when reasonably practicable, but not later than 30 days before the transfer is carried out and in any event in good time before the employees are directly affected by the transfer as regards their terms and conditions of work and employment.

If either the transferor or the transferee envisage any measures in relation to the employees, they must consult with the employees representatives, where reasonably practicable, but not later than 30 days before the transfer is carried out and, in any event in good time before the transfer is carried out, in relation to any measures with a view to reaching an agreement.

If there are no employees representatives, the employers must put in place a procedure whereby the employees can choose their own representatives, including by means of an election. However if there are still no employee’s representatives in the undertaking or business concerned (through no fault of the employees), each of the employees must be informed in writing, where reasonably practicable, not later than 30 days before the transfer, and in any event in good time before the transfer the particulars as outlined in (a) to (d) above.

All of the above obligations apply irrespective of whether the decision resulting in the transfer if taken by the employer or another undertaking controlling the employer.

It should be noted that for the purposes of the Regulations “employees representative” means a trade union, staff association or excepted body with which it has been the practice of the employee’s employer to conduct collective bargaining negotiations, or in their absence, a person or persons chosen by such employees (under an arrangement put in place by the employer, including by means of an election) from among their members to represent them in negotiations with the employer.

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