Employers should always consult with employees before dismissing them on the grounds of redundancy. There are two ways this might be done through individual or collective consultation. Your employer should always consult with you individually and may have to consult collectively.
Workplace consultation involves your employer talking to you or your representatives about their plans and listening to your ideas.
If your employer is thinking about making redundancies, they should consult with any employees that could be affected by their decision. The consultation should aim to provide employees with a way to influence the redundancy process. It should be carried out with the aim of coming to an agreement about any action and should be conducted in a spirit of co-operation.
Consultation with individuals
Your employer should always consult you individually. This will normally involve:
- speaking to you directly about why you have been selected
- looking at any alternatives to redundancy
- If this doesn’t happen, your dismissal for redundancy may be unfair.
Collective consultation – 20 or more redundancies
If your employer is thinking about making 20 or more employees redundant at one establishment within a 90-day period, they should consult with employee representatives. Only employees are included when counting the number of redundancies, not ‘workers’ without employment status.
Who your employer will consult with depends on whether you are represented by a trade union. This process is known as collective consultation.
Trade union representatives
If you are represented by a recognised trade union in your workplace, then your employer should collectively consult with the trade union representatives (reps). If your employer consults with your trade union they are not required to consult collectively with anybody else.
If your employer does not recognise a trade union or you work in a part of the company that isn’t represented by a recognised trade union, then your employer should make arrangements to allow you to elect reps. These reps will take part in the consultation on your behalf.
The rep could be an existing rep, for example reps involved in ongoing information and consultation arrangements, or they could be specially elected for this consultation.
The reps must have the authority to represent you and must be fit for the task. For example, it would not be appropriate for a committee set up to discuss the operation of a staff canteen to be consulted about redundancies amongst sales staff.
Collective consultation process
The consultation must be meaningful. It must be genuine and conducted with a view to reaching an agreement. It must cover:
- ways to avoid redundancies
- the reasons for redundancies
- how to keep the number of dismissals to a minimum
- how to limit the effects on those dismissed (eg by offering retraining)
There may be special circumstances where it is not reasonably practical for your employer to consult fully. In these circumstances your employer must do everything they can to ensure that the consultation is as full as possible.
Information during consultation
To enable reps to make constructive proposals your employer must provide them with enough written information in good time including:
- reasons for the proposed redundancies
- number of employees that are proposed to be made redundant
- different types of employees that are proposed to be made redundant
- number and types of employees
- how any employees to be made redundant will be selected
- time period over which any redundancies may be carried out
- how any redundancy payments will be calculated
Consultation period and termination notices
A termination notice tells you when the last day of your employment will be, eg the day you will be made redundant. Termination notices cannot be issued until after the consultation has been completed, even if the consultation needs to go beyond the minimum period.
If the consultation is genuinely completed within the minimum period you may be issued with a termination notice. This cannot take effect until after the minimum consultation period ends unless you agree to leave early, for example by taking pay in lieu of notice.
A consultation must begin ‘in good time’ and take as long as is necessary. It should be conducted with a view to reaching agreement, but can end before agreement is reached. Your employer should give your reps a fair opportunity to comment on the proposals and suggest alternatives, to which your employer should give genuine consideration. The final decision rests with your employer.
There is no time limit to how long a consultation period may last but there is a minimum period between the start of the consultation and actual dismissals.
The length of the minimum period depends on the number of redundancies that your employer is proposing, if they are proposing:
- 20 – 99 redundancies, they must start the consultation at least 30 days before any dismissals take effect
- 100 or more redundancies, the consultation must start at least 90 days before any dismissals take effect
Failure to consult
You or your rep might be able to make a claim to an Employment Tribunal for a ‘protective award’ if your employer:
- does not begin consultation early enough
- ends the consultation early
- doesn’t consult properly
An Employment Tribunal could make a ‘protective award’ of up to 90 days’ pay for each affected employee. The amount will be decided by the Employment Tribunal, based on the extent of your employer’s failure and the circumstances.
Your employer’s duty to notify the government
If, within a 90 day period, 20 or more redundancies are proposed, your employer must notify the appropriate Redundancy Payments Office of the proposals before any termination notices are sent to employees.
This notification must be at least 30 days before any dismissal takes effect, and if 100 or more redundancies are proposed, at least 90 days before any dismissal takes effect.
This is to allow the government to prepare help for those made redundant by alerting the local Job Centre Plus so it can provide advice on retraining or re-employment to affected employees.
Notifying is part of the consultation process. Your employer must also provide a copy of the notification to your reps. If your employer does not notify the government correctly then they can be fined.