The basic principle of consultation is that it is approached with an open-minded and without any final decisions made regarding the redundancies. If employee representatives can show that the employer had already decided to proceed with the redundancies before consultation, this will almost certainly render any subsequent consultation process a sham. The duty to consult in a collective consultation situation generally arises much earlier than in a “standard” redundancy- the obligation arises at the point of the “proposal” to dismiss.
Most UK employers are not familiar with arranging representative elections, and many are therefore not sure where to start. Employers have some discretion over employee representative elections (such as how many representatives are required), but there are a number of strict rules and overriding principles which they must follow.
The process can be particularly challenging where some employees are out of the business (for example on long-term sick leave), as employers must ensure that all employees have a reasonable chance to participate in the elections.
Employers are sometimes tempted to try and rush elections as the 30-day clock won’t start ticking until the representatives are in place and have been given the required information. They risk sizeable protective awards if they do so in a way which doesn’t comply with collective consultation obligations.
Some of the information required to be provided by section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 is basic, such as the total number of the proposed redundancies and the specific roles which are at risk.
However, not all of the information is obvious by any stretch – for example, employers must provide details of their use of agency workers anywhere in the business. Although this may seem unimportant, a failure to provide this information is technically a breach of collective consultation obligations.
Collective consultation creates an extra layer of protection for employees; it does not remove their existing protection against unfair dismissal. Employers must still therefore consult with individual employees who remain at risk of redundancy following collective consultation, or risk unfair dismissal claims on the basis that they have not followed a fair procedure.
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