Consultation with Employees & Representatives
Consultation with Appropriate Representatives
Where more than 20 employees may be made redundant (or may be affected by proposed dismissals or by measures taken in connection with those dismissals) at one establishment within a 90 day period, employers must consult with any appropriate representative of a recognised independent trade union or, where no union is recognised, elected representatives of the affected employees. Consultation must begin 30 days before the first proposed redundancy (45 days if more than 100 employees may be made redundant). Specific requirements are laid down for electing employees representatives who are to be consulted where the employer does not recognise a union.
Employers must, in either case, provide those representatives with reasons for their plans, numbers and details of employees involved, proposed method of calculating redundancy payments, redundancy selection methods and procedural plans. Employers will also need to supply information on the total number of agency workers engaged, the type of business in which they are utilised, and the type of work they are contracted to undertake.
If an employer invites affected employees to elect representatives and they fail to do so within a reasonable period, the employer must give each affected employee the information that would have been provided to the elected representative.
Discussions must be ‘meaningful’ ie they should be genuine, constructive and with a view to avoiding or mitigating the problem. However, the final decision is down to the employer alone. If the union or elected representatives claim that this procedure has not been properly under taken, it can seek to have a protective award made against the employer (up to 13 weeks' pay for affected employee). This award is intended to protect the wages of those affected for a defined period.
Consultation with Individual Employees
Individual employees affected should be consulted and provisional selection for redundancy discussed before the decision is finalised. Any available alternative work on offer should be discussed and these jobs should be offered. Employers must remember to consult with employees on maternity or long term sick leave.
Where appropriate, volunteers for redundancy should also be sought and considered, whether or not they meet the employer's pre-set redundancy selection criteria.
If 20 or more employees from any one establishment are to be affected, employers must submit an HR1 form to the Revenue Payment Service, giving 30 days’ notice; 45 days if 100 or more employees are affected. Failure to notify as required can lead to fines of up to £5,000. Special circumstances (e.g. commercial sensitivity) may justify departure from this procedure.
Redundancy is potentially a "fair" reason for dismissal but failure to follow a fair procedure could render employers liable for unfair dismissal.
Consulting during coronavirus
Employers must still consult their employees during the coronavirus pandemic. Consultations can take place remotely.