REDUNDANCY - 03.07.2020

Collective consultation on redundancy - what’s to know?

The Coronavirus Job Retention Scheme will gradually be tapered from 1 August until its closure on 31 October 2020, leaving many employers faced with the prospect of making redundancies. When does the obligation to collectively consult arise?

Statutory duty to consult

In yr.2, iss.9, pg.4 we discussed how to ensure a fair redundancy, including what constitutes a genuine redundancy and what your individual consultation obligations are (see Follow up ), and in yr.2, iss.10, pg.10 we explored fairly selecting employees for redundancy (see Follow up ). These articles are relevant regardless of the number of redundancies you propose to make, as the purpose of ensuring that a redundancy is fair is to avoid a successful unfair dismissal claim. In addition, s.188 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) states that where you’re proposing to dismiss as redundant 20 or more employees at one establishment within 90 days or less, you’re required to consult about those dismissals with the “appropriate representatives” of both the employees whom you’re proposing to dismiss and any employees who may be affected by measures taken in connection with those dismissals.

Pro advice. The duty to consult collectively under TULRCA is additional to the duty to consult individually. Where TULRCA applies, you must ensure you consult with employees both collectively and individually, even if those consultations take place virtually by video or audio conferencing and email. Both consultations can take place concurrently.

Pro advice.TULRCA also includes consultation with the reps of those employees whose jobs aren’t under threat of dismissal but who may still be affected by the redundancy programme, e.g. because their working practices will change.

Pro advice. When calculating how many employees you’re proposing to dismiss at one establishment, voluntary redundancies must still be included. You must also include short-serving employees - they might not have two years’ employment to claim unfair dismissal, but they are not excluded from collective consultation. However, the 20+ figure is not taken across the business as a whole - the redundancies must generally be at the same workplace or location.

Collective consultation timetable

Consultation must begin “in good time” and in any event must begin at least 30 days (for between 20 and 99 redundancies) or 45 days (for 100 or more redundancies) before the first dismissal takes effect.

Pro advice. You’re under a duty to consult once you’re proposing redundancies. It must begin early enough for the reps to have a meaningful opportunity to affect your decisions (see Follow up ). In the current circumstances it may take longer than usual.

Pro advice.TULRCA refers to the first dismissal taking effect, not the first redundancy notice being given, meaning you can potentially issue redundancy notices as soon as the substantive consultation process has concluded, even if that’s before the expiry of the 30 or 45-day consultation period, provided the dismissals themselves don’t take effect until after the 30 or 45-day period has expired. If you are going to do this, seek reps’ express confirmation that they agree the consultation process has concluded.

Pro advice. 1 October 2020 is your last deadline for starting consultation if proposing to make 20-99 redundancies at one establishment (with notice or pay in lieu) when the Coronavirus Job Retention Scheme (CJRS) ends on 31 October 2020 - and you’ll need to factor in a couple of weeks for elections before that if you don’t already have reps. You might want to commence it earlier though if you’re aware job losses are already required but, if the fairness of a redundancy during the operation of the CJRS is challenged, be prepared to justify why you dismissed when CJRS support was still available.

The consultation procedure

Consultation must cover ways in which dismissals can be avoided or the numbers reduced and mitigating the consequences of the dismissals and you must undertake it with a “view to reaching agreement” with the reps, so there must be genuine negotiation on your part. You must provide the reps with the following information in writing (see Follow up ):

  • the reasons for your proposals
  • the number and description of employees you’re proposing to make redundant, and the total number of employees of any such description employed at the establishment
  • your proposed methods for selecting the employees for dismissal and for carrying out the dismissals (including the period over which the dismissals are to take effect)
  • your proposed method of calculating the amount of any non-statutory redundancy pay
  • the number of agency workers working for you, the parts of your business in which they are working and the type of work they carry out.

Pro advice. Ideally, the information should be provided before the first meeting, but it can be given on a gradual basis as available.

Pro advice. If the consultation process is taking place remotely, as you must also allow the reps to have access to the employees and provide them with appropriate facilities, you may need to create email groups or internal intranet sites to enable effective communication. Everyone will need access to adequate IT.

The appropriate representatives

Under TULRCA , the “appropriate representatives” are trade union reps, if you recognise a union. Otherwise, you can choose to consult either:

  • employee reps appointed or elected by the affected employees for a purpose other than redundancy consultation but who have authority from them to be consulted about the proposed dismissals on their behalf, e.g. an existing standing body of employee reps, or
  • employee reps elected by the affected employees for the specific purpose of collective redundancy consultation.

Election of employee representatives

The TULRCA election rules provide that:

  • you must make such reasonably practical arrangements to ensure the election is fair
  • you must determine the number of reps to be elected so that there are sufficient to represent the interests of all affected employees, having regard to the number and classes of employees
  • you must determine whether the employees should be represented either by reps of all employees or by reps of particular classes of employee (see Follow up )
  • you must determine the reps’ term of office so that it’s of sufficient length to enable relevant information to be given and consultations to be completed
  • the candidates for election are affected employees on the date of the election and no affected employee must be unreasonably excluded from standing - furloughed employees can still be reps
  • all affected employees are entitled to vote and they may vote for as many candidates as there are reps to be elected to represent them (see Follow up )
  • you must conduct the election to secure that, so far as reasonably practicable, those voting do so in secret and the votes are accurately counted (see Follow up ).

Pro advice. A ballot isn’t necessary where the number of candidates nominated is the same or less than the number of reps sought.

Pro advice. You may need to carry out the election remotely, e.g. using social media, email and a secure online voting platform (which could take extra time), but if employees fail to elect reps within a reasonable time after being invited to do so, you must provide all affected employees with the information that would have otherwise been provided to their reps.

Pro advice. Reps have the right to paid time off work to fulfil their duties and the right not to be dismissed or subjected to a detriment.

Pro advice. Failure to comply with TULRCA is costly - a maximum protective award of 90 days’ actual pay per redundant employee can be made.

Pro advice. You must also send written notification to the Secretary of State on Form HR1 according to prescribed timescales (see Follow up ) - failure is a criminal offence and subject to an uncapped fine.

Previous article on how to ensure a fair redundancy

Previous article on fair selection of employees for redundancy

Employee rep role explanation letter

Collective consultation letter

Invitation to nominate as employee representative

Letter inviting employees to elect employee representatives

Ballot form for election of employee representatives

Form HR1

The statutory duty to collectively consult applies where you’re proposing to make 20 or more employees redundant at one establishment within 90 days or less. You must then consult with either trade union or elected representatives of affected employees. It’s additional to the duty to consult individually on redundancy.