In a collective redundancy situation, employers have a duty to consult on a collective basis with the representatives of the employees affected by the potential redundancy situation.
The duty to collectively consult and consequences of a failure to consult are set out in Trade Union and Labour Relations (Consolidation) Act 1992.
Case law and the law relating to unfair dismissal suggest that it is also best practice to individually consult with the potentially redundant employees in addition to the collective consultation.
- The duty to consult on a collective basis with potentially redundant employees arises only where an employer is proposing to dismiss 20 or more employees at one establishment within a period of 90 days or less.
- Affected employees in the context of a collective redundancy situation are those who may be affected by the actual proposed dismissals or any employees who may be affected by measures to be taken in connection with the dismissals.
- The employer's duty to consult on a collective basis is with appropriate representatives of the affected employees.
- Appropriate representatives will have the right not to be subjected to any detriment on grounds that they are employee representatives. They are also entitled to take reasonable paid time off work in order to carry out their functions.
- Collective consultation must begin 'in good time' and always within the specified minimum time periods.
- There is a prescribed list of information that must be given to the employee representatives set out in TULRCA.
- If there are no existing employee representatives that the employer can consult with, employees should be invited to elect representatives.
- If an employer has failed to comply with any of its collective consultation obligations, the affected employees or their representatives may be able to bring a claim in the employment tribunal.
- Employers have to notify BIS in writing of their intention to carry out collective redundancies.
- In addition to the obligation to collectively consult, employers should still consult individually with employees in a redundancy situation.