Legal News | 26.07.23
Redundancy: Collective Consultation
Article 3 of 6
The duty to collectively consult requires an employer to inform and consult with representatives of the affected employees. An employee is classed as an “affected employee” if they have been selected for redundancy or measures proposed in connection, such as a change in contractual terms, which will impact them.
If there is a recognised trade union, for the purposes of collective bargaining, the employer must consult that union in respect of those affected employees. In other cases, the employer will need to conduct an election, in accordance with the specific rules, with the affected employees to appoint employee representatives (who must be an affected employee) to consult.
The number of representatives to be elected is determined by the employer and will need to be sufficient to represent the interests of all the affected employees, having regard to the number and classes of those employees. The term of office for the employee representatives must be of sufficient length to enable information to be given and the consultation completed.
All affected employees are entitled to stand as a candidate. Each affected employee may vote and will have as many votes as there are representatives required. So far as is reasonably practicable, voting must be secret and votes should be accurately counted.
Where the duty to collectively consult applies the employer must notify the Secretary of State of the proposed redundancies using Form HR1, with a copy being provided to the employee representatives.
Exploring the collective consultation process
We will discuss the consultation process in more detail in future articles, but it is worth noting certain points at this stage.
Where 100 or more redundancies are proposed, collective consultation must take place at least 45 days before the first dismissal takes effect. For fewer than 100, the minimum is 30 days before the first dismissal takes effect.
The process begins with the provision of written information on the proposed redundancies to the appropriate employee representatives and then moves on to consultation.
The aim of consultation must, as a minimum, be to reach agreement on ways and means of avoiding dismissals, reducing the number of dismissals and mitigating their consequences.
The consultation must be genuine. It will not be sufficient to simply explain the proposals and listen to any counterproposals.
Collective consultation is not a substitute for individual consultation but an additional requirement. For this reason, during collective consultation, employers should seek to agree a procedure for deciding on the redundancies, including provision for individual meetings.
What are the consequences of failing to comply?
Affected employees may bring a claim to an employment tribunal for a protective award of up to 90 days’ actual gross pay. An employer, may also face other claims, including unfair dismissal.
It is a criminal offence punishable by an unlimited fine, where it is a requirement to notify the Secretary of State of the proposed redundancies and the employer fails to do so.
Other articles in this series:
Article 4: Redundancy – Consultation
Article 5: Redundancy – Scoring
Article 6: Redundancy – Outcome