What is TUPE Consultation and what does it require?

When a public service transfers to a new provider, staff are protected by the Transfer of Undertakings (Protection of Employment) Regulations, known as TUPE. Getting the duty to inform and consult wrong can cost up to thirteen weeks’ pay per affected employee, yet the duty itself is often assumed rather than properly understood.

What is TUPE consultation?

TUPE consultation is the duty on an employer to tell staff about a workforce transfer and, where changes are proposed, to consult them on those changes before it takes place. It applies whenever a service, or part of one, moves from one employer to another, under the Transfer of Undertakings (Protection of Employment) Regulations 2006, including most outsourcing and insourcing decisions.

Not every change of contractor counts as a relevant transfer. TUPE applies where there is what the regulations call a service provision change: an organised group of employees carrying out the work for the client, doing activities that remain fundamentally the same before and after the move. Where that test is not met, this particular duty does not apply, though other duties can still arise separately.

Even where TUPE does apply, it is a narrower duty than it sounds. The decision to outsource a service in the first place is a commercial and political judgement, and staff have no right to be consulted on it. What TUPE gives them is a right to be consulted on how the move affects them, not on whether it happens.

Who owes the duty, and when does it apply?

The duty does not pass from one employer to another as a single baton. The outgoing employer keeps its own statutory duty to inform and consult, and the incoming employer takes on a separate one of its own. Each can be held liable on its own account if it fails to meet it.

This is why the two employers need to exchange information early. By law, the outgoing employer must give the incoming employer employee liability information, covering matters such as disciplinary and grievance history, so both can plan their own duties rather than discover problems too late.

There is no fixed minimum consultation period under TUPE, unlike collective redundancy consultation. Employers must simply allow enough time to inform, consult and consider any views raised before the transfer takes place, reflecting the size of the workforce and the scale of the changes proposed.

Where there is no recognised trade union, staff must be given a fair opportunity to elect representatives before consultation can properly begin. Arranging that election takes time in itself, and it needs to be built into the timetable rather than treated as a formality to fit in later.

For NHS bodies and local authorities, this duty sits alongside sector-specific guidance on staff transfers, such as the Cabinet Office Statement of Practice for the public sector. That guidance does not change what TUPE itself requires. It sits alongside it, not in place of it.

What must genuine consultation actually involve?

Employers must always inform affected staff about a transfer. They only have to consult if there are proposed “measures”, meaning changes that will affect them, such as harmonising terms and conditions, moving a base location, altering shift patterns, or changing pension arrangements. Where no measures are proposed, the duty to inform still stands.

Consultation itself has a specific meaning, and it is worth being precise about it. It means listening to staff or their representatives, properly considering what they say, trying to reach agreement, and explaining the reasons if a proposal is rejected.

Simply announcing a decision that has already been made is not consultation, however clearly it is communicated, and however good the intentions behind it. The test is whether staff had a genuine opportunity to influence the outcome, not whether they were kept informed.

What happens if the duty is not met?

Failure to inform or consult properly can result in an award of up to thirteen weeks’ pay per affected employee, decided by an employment tribunal. Liability falls on whichever employer, outgoing or incoming, is responsible for the failure.

This exposure exists regardless of how the wider transition is handled. A transfer can be well managed in every practical sense, communications, logistics, staff welfare, and still fall short of this specific legal duty, because the duty is about a defined process, not a general standard of good conduct.

For a commissioner or an HR lead planning an outsourcing project, the practical answer is to treat TUPE consultation as its own workstream from the outset, with its own timetable and a named owner in both the outgoing and incoming organisation, rather than something to be picked up once other transition work is under way.

How tCI Can Help

Advice and Guidance
A tCI faculty member will work alongside you to support the development of your decisions and engagement approach. We provide independent, constructive advice at critical stages, helping you strengthen stakeholder mapping, test communication strategies, and plan robust post-decision engagement. Our role is to act as a critical friend, offering practical recommendations grounded in consultation law and good practice that build confidence in your process.

Risk Assessment
Early identification of legal, political or reputational risks in your engagement approach. Using tCI’s five-risk methodology, we spot gaps before challenge arises, helping you strengthen stakeholder communication and demonstrate procedural fairness from the outset.

Executive Briefings
Concise updates for senior leaders on consultation law, engagement duties and post-decision risks. Helps boards and leadership teams make confident, defensible decisions when under pressure, with clear guidance on what good engagement looks like after difficult choices are made.

Whether you’re preparing for a high stakes service change or building defensible evidence for complex decisions, we can help.

Contact tCI: hello@consultationinstitute.org