In Allen & ors v Morrisons Facilities Services Limited  UKEAT 0298, the Employment Appeal Tribunal (EAT) considered whether employees transferring under TUPE could bring a claim against their new employer, where the new employer had failed to provide the old employer with adequate information about its proposed measures.
The EAT held that employees do not have a direct cause of action against their new employer in these circumstances. Under TUPE, the new employer ought to have told the old employer pre-transfer about the measures it envisaged taking post-transfer (so that the old employer could inform and consult with the employees appropriately pre-transfer), but the employees cannot bring a claim directly against the new employer for failure to do so. The only way the employees could have obtained redress from the new employer was via a rather convoluted method (involving a claim against the old employer and the old employer joining the new employer as a party), but in this case the employees had already settled their claims against their old employer, so this was not an option.
This decision is a reminder that outgoing employers will be in the firing line where there is a dispute over whether information has been provided to employees prior to a TUPE transfer, even where the original fault lies with the incoming employer. Outgoing employers should chase the incoming employer for full information and, if possible, seek appropriate indemnities from the incoming employer against any liability.