Unfortunately there have been casualties along the way. However, if reports are to be believed then employers are not out of the woods yet and therefore this article is to assist employers to comply with the legislation surrounding collective consultation during redundancies.
What is Collective Consultation?
You are legally obliged to consult with Trade Union Representatives or elected representatives where there are plans to make 20 or more employees redundant at one establishment within a 90 day period.
Consultation on the redundancies must begin at least 90 days prior to the first dismissal where it is proposed 100 or more redundancies will take place and at least 30 days prior to the first dismissal where it is proposed between 20 and 99 redundancies will take place.
Notifying the Secretary of State
Where an employer is proposing to make the above number of individuals redundant they are legally obliged to advise the Secretary of State in writing. This can be submitted on an HR1 form which can be found on the Department for Business Innovation and Skills website (formerly the Department for British Enterprise and Regulatory Reform website).
It is an offence for an employer not to disclose this information and an employer will be subject to a fine for non-compliance.
It is also important to remember that a copy of the notification form should also be provided to each of the Trade Union / employee representatives.
When to consult
You are required to consult with representatives regarding:
- Reasons for the dismissals;
- Ways of avoiding the dismissals or reducing the numbers to be dismissed;
- Mitigating the consequences of redundancies
Recent case law has further clarified the position on collective consultations stating that employers are obliged to begin consultations prior to any definite decision being made on redundancies e.g. consultations must begin when the employer becomes aware that they may lose a contract and not when the final decision has been made.
What happens if an employer fails to consult?
If you fail to meet the requirements of the consultation process, representatives and employees can complain to an employment tribunal. If it is found that the employer has failed to fulfil its obligations to consult, the tribunal can make a ‘protective award’ of up to 90 days pay for each employee.
Minimising the risk
You can reduce the risk of tribunal proceedings by beginning the consultation period as soon as practically possible and prior to any definite decisions on redundancy being taken. This will then facilitate discussions on how the company may be able to avoid or reduce dismissals.
Further advice
Further information can be obtained from your HR Department in respect of managing redundancy within your organisation. For NorthgateArinso clients, our HR Outsourcing team is able to provide specific support in managing this type of situation. Please contact the NorthgateArinso HR Advice Line on 0845 073 0266 who will be happy to help with any queries.
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