11.—(1) In regulation 13(1)(1) (duty to inform and consult representatives) after “regulations” insert “13A”.
(2) After regulation 13 insert—
13A.—(1) This regulation applies if, at the time when the employer is required to give information under regulation 13(2)—
(a)the employer employs fewer than 10 employees;
(b)there are no appropriate representatives within the meaning of regulation 13(3); and
(c)the employer has not invited any of the affected employees to elect employee representatives.
(2) The employer may comply with regulation 13 by performing any duty which relates to appropriate representatives as if each of the affected employees were an appropriate representative.”.
(3) In regulation 15 (failure to inform or consult), in paragraph (3) at the end insert “except where the question is whether or not regulation 13A applied”.
(4) In regulation 15 (failure to inform or consult), after paragraph (3) insert—
“(3A) If on a complaint under paragraph (1), a question arises as to whether or not regulation 13A applied, it is for the employer to show that the conditions in sub-paragraphs (a) and (b) of regulation 13A(1) applied at the time referred to in regulation 13A(1).”.
(5) The amendments made by this regulation apply in relation to a TUPE transfer which takes place on or after 31st July 2014.
Regulation 13 has been amended by the Agency Workers Regulations 2010 (S.I. 2010/93), regulation 25, Schedule 2, Part 2, paragraphs 28 and 29.