Legal Article - Employment Law

Consultation with Trade Unions’ or Employee Representatives

Where an employer proposes to make redundant at one establishment between 20 and 99 employees within a 90 day period, they must consult with either a recognised independent trade union or elected representatives of the affected employees at least 30 days before the first redundancy takes effect.

If the employer is proposing to make 100 or more employees redundant, they must consult at least 90 days before the date of the first dismissal. These are minimum time periods, but the overriding requirements are to consult in “good time” wherever practical.

Employee representatives must be elected and employees can elect whoever they wish amongst the workforce. It is up to both the employer and the employees concerned to agree between them how the elections will take place. There is no requirement to have a “standing” consultative committee, but the employer should consider

 
 • That the arrangements adequately cover all categories of employees who are to be, or might be, made redundant and provide a reasonable balance between the interests of different groups

• That the employees have sufficient time to nominate and consider candidates

• That the employees (including any who were absent from work for any reason) can freely choose who to vote for

• Whether the company has a normal practice for similar elections and should only depart from this if there are good reasons for doing so.

See “The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2006”.

Elected representatives and trade union representatives have the right not to be

• dismissed on the grounds they are representatives, nor

• subjected to any detriment by the employer on the grounds of their status as representatives and to have reasonable time-off with pay for these specific purposes.

The duty to consult arises where an employer is contemplating collective redundancies and consultation must begin as soon as practicable after the election of representatives. Prior to the consultations the employer must disclose to the trade union or elected representatives in writing:

• The reasons for the proposals

• The numbers and descriptions of employees it is proposed to make redundant

• The total number of employees of that description employed at the establishment in question

• The proposed method of selecting the employees who may be dismissed
• The proposed method of carrying out the dismissals, including the period over which the dismissals are to take effect.

Consultation must be carried out with a view to reaching an agreement.

An employer does not have to consult where it is impracticable to do so e.g. sudden closure of the business due to extreme financial pressures, or a fire. Reasons to do with ignorance, a wish not to upset the morale of the employees, or the need for secrecy to protect the business are not acceptable reasons for failing to consult.

A failure to consult could result in the employer having to pay a protective award to each of the employees for a maximum period of 30 days if 20 or more employees are to be made redundant and 90 days if there are 100 or more redundancies in one establishment. The amount of the protective award is one week’s pay for each week of the protected period.

This in addition to any pay due under the employee’s contract of employment.

These consultation provisions apply to any dismissals for a reason, or reasons, not related to the individual concerned. In other words, if an employer proposes to dismiss employees as a result of changes to work practices and 20 or more are affected the obligation to consult applies (i.e. the definition of redundancy is widened).

If proposed redundancies falls between 20 and 99, employers must inform the relevant organisations 30 days prior to the first redundancy taking place. If the number of redundancies reaches 100+ then the organisations must be contacted within 90 days. If this rule is breached, then a £5000 penalty fine will ne incurred.

 

Published: 02 Jun 2011

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