Collective Consultation
Firstly, an employer must normally identify who the ‘appropriate representatives’ of affected employees will be (micro businesses are exempt). Where a trade union is recognised in respect of affected employees the appropriate representatives will be representatives of that trade union. If there is no recognised trade union, or if a trade union is not recognised in respect of all affected employees it may be necessary to appoint employee representatives. TULCRA requires that this process be done by way of election and sets out detailed provisions as to how those elections must be handled.
Once the correct representatives have been identified or elected the employer must provide the representatives with certain information in writing including the reasons why dismissals are proposed, the number of employees affected and any selection criteria which will be used to identify which employees in any redundancy pool are to be dismissed. It will not generally be sufficient to provide this information to affected employees directly, the exception being where affected employees were invited to elect representatives but failed to do so within a reasonable period of time.
A period of consultation must then be entered into. Consultation should begin in good time and must last for a minimum period depending on the number of affected employees. If the employer is proposing to dismiss, as redundant, 20 to 99 employees consultation should begin not less than 30 days before the day on which dismissals are to take effect. If 100 or more employees are likely to be dismissed this period should last for at least 45 days.
It is important to note that there is no requirement for the consultation period itself to last for 30 or 45 days and the consultation period can permissibly last for less than these periods. Further, whilst no dismissal can take place within these minimum periods notice can be given during this time. This is subject to an overriding requirement that consultation must last for as long as is required to reach agreement or exhaust the possibility of agreement.
Where an employer fails to comply with TULCRA it risks claims brought by the appropriate representatives themselves, for a failure to inform and consult. These claims could result in ‘Protective Awards’ being made of up to 90 days’ pay per employee which can quickly add up to eye wateringly high sums especially if the number of redundant employees is high!
In addition to collective consultation obligations, where an employer is proposing to make 20 or more employees redundant it must notify the Secretary of State of that fact using form HR1. The notification must be given either 30 or 45 days in advance of the proposed redundancies taking effect. Failing to serve this notice is a criminal offence and an unlimited fine may be imposed.
Collective Consultation: Key Considerations for Employers
Collective consultation is a crucial process for employers in the UK, particularly when making significant changes that affect the workforce, such as redundancies, restructuring, or altering terms and conditions of employment. This process is not only a legal requirement in certain situations but also a best practice for maintaining good industrial relations and mitigating the impact of organisational changes. Employers must understand their obligations under employment law, as well as the importance of engaging with employee representatives or trade unions in a transparent and constructive manner.
Legal Obligations and Thresholds
Under UK employment law, collective consultation is mandatory when an employer proposes to make 20 or more employees redundant within a 90-day period at a single establishment. The law requires employers to consult with employee representatives, which may include trade unions if they are recognised, or elected representatives if no union is present. The consultation must begin well in advance of any decisions being finalised and at least 30 days before the first dismissal in the case of 20-99 redundancies, and 45 days before in the case of 100 or more redundancies. Failing to adhere to these requirements can result in legal penalties and compensation claims.
The Consultation Process
The purpose of collective consultation is to discuss the reasons for the proposed changes, consider alternatives, and explore ways to mitigate the impact on employees, such as finding alternative employment within the organisation or reducing the number of redundancies. Employers must provide representatives with relevant information, including the reasons for the proposed changes, the number of employees affected, and the criteria for selection. This transparency helps build trust and allows representatives to contribute meaningfully to the process, potentially leading to better outcomes for both the employees and the business.
Engaging with Representatives
Effective engagement with employee representatives is key to a successful collective consultation. Employers should approach the process with an open mind, genuinely considering the views and suggestions of the representatives. Regular meetings, open communication channels, and a willingness to negotiate are essential components of a constructive dialogue. Employers should also ensure that representatives have sufficient time and resources to carry out their role effectively, including access to the information needed to represent their colleagues’ interests adequately.
Redundancy Consultation Period
The redundancy consultation period is a critical phase during which employers must engage with affected employees or their representatives to discuss proposed redundancies and explore alternatives. In the UK, the length of this period varies depending on the number of employees at risk. For 20 to 99 potential redundancies within 90 days at a single establishment, a minimum consultation period of 30 days is required, while 100 or more redundancies necessitate a 45-day consultation period. During this time, employers must provide clear information on the reasons for redundancies, the number and categories of employees involved, the selection criteria, and the proposed method of carrying out the redundancies. The consultation period aims to allow meaningful dialogue, seek ways to avoid or reduce the number of redundancies, and mitigate their impact, ensuring a fair and transparent process that adheres to legal requirements.
Record Keeping and Compliance
Maintaining thorough records of the collective consultation process is crucial. This includes minutes of meetings, correspondence, and any documents provided to employee representatives. These records not only demonstrate compliance with legal obligations but also serve as a valuable reference for managing the process and addressing any disputes that may arise. Employers should also be aware of their obligations under the Data Protection Act and ensure that any personal data shared during the consultation is handled appropriately.
In summary, collective consultation is a vital process that requires careful planning, clear communication, and a commitment to engaging with employee representatives in a meaningful way. By fulfilling their legal obligations and fostering a collaborative approach, employers can navigate challenging organisational changes more smoothly, maintain positive employee relations, and minimise the potential for conflict and disruption.
