A collective consultation process can be tricky to navigate. Our guide answers some commonly-asked questions to help you get it right.
The duty to consult with employees and notify the Secretary of State where collective redundancies are proposed is implemented through the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), sections 188-198. The duty to consult arises where an employer is proposing to make 20 or more employees redundant at one establishment within a period of 90 days or less.
Q. Who must employers notify before a collective consultation process and how do they do so?
A. Employers have a duty to notify the Secretary of State in writing of proposed redundancies before any dismissals take effect.
Notification should be sent as soon as possible and is a separate requirement to consultation. Consequently, the date for giving notification may be different to the date that the consultation commences, and so the time periods before redundancies take effect may not entirely overlap.
- If an employer is proposing to dismiss 100 or more employees, the notification must be sent at least 45 days before the first of those dismissals can take effect.
- If an employer is proposing to dismiss 20-99 employees, the notification must be sent at least 30 days before.
The notification must state, where relevant, the date that the consultation was started and employee representatives should be given a copy.
Failure to provide the notification to the Secretary of State in accordance with the requirements is a criminal offence, punishable on summary conviction by a fine.
Q. When should employers begin the collective consultation process?
A. The consultation should begin in good time and with a view to reaching agreement.
The consultation must begin once the redundancies have been proposed and before any decision to make redundancies has been made. No dismissals can take effect until the consultation is complete and the minimum period has elapsed.
Consultation may also take longer to complete than the minimum period before dismissal can take effect.
Q. Who should employers consult with during a collective consultation process?
A. Employers must consult with appropriate employee representatives.
Where there is an employer-recognised trade union consultation must occur with trade union representatives. Otherwise, if no union is recognised, employers must consult with the elected or appointed employee representatives who have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf.
Q. What should the collective consultation cover?
A. There are certain specific topics the employer must ensure are covered during consultation.
The collective consultation discussions must include:
- avoiding the dismissals,
- reducing the numbers of employees to be dismissed, and
- mitigating the consequences of the dismissals.
Consultation should be undertaken with a view to reaching agreement on these issues.
Q. Do employers need to inform the employee representatives of anything else during a collective consultation process?
A. There is certain information employers must provide to employee representatives in writing.
This includes:
- the reasons for the proposals;
- the numbers and descriptions of employees whom it is proposed to dismiss as redundant;
- the total number of employees of any such description employed by the employer at the establishment;
- 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;
- the proposed method of calculating the amount of any redundancy payments to be made; and
- the number of agency workers working temporarily for the employer, the parts of the business they are working in and the type of work they are carrying out.
Q. What about any mitigating circumstances?
A. If there are special circumstances rendering it not reasonably practicable for the employer to comply with any of the above requirements, they must take all such steps towards compliance with that requirement as are reasonably practicable in the circumstances.
Q. What are ‘protective awards’?
A. If an employer fails to adequately consult they are liable to pay a protective award.
This award can be up to a value of 90 days’ gross pay per employee, dependent on the seriousness of the employer’s default in complying with the legislation.