Where an employer is faced with the difficult decision of making collective redundancies of large groups of employees, the employer has a statutory duty to consult with appropriate representatives of the employees, with a view of seeking potential compromise.
Recent years have witnessed trends indicating higher numbers of claims being brought regarding defective consultation processes. That is why it is important for business managers to work with expert Employment Law Solicitors when considering and carrying out collective redundancies.
Definition of collective redundancy
For the purpose of the legal duty, imposed by the Trade Union and Labour Relations Act (TULRA), a collective redundancy is defined as where an employer seeks to dismiss 20 or more employees within a window of 90 days or less.
Redundancy, in the context of collective consultations, refers to a dismissal that is not grounded on different issues relating to each individual, for example competence. Dismissal is a broad concept and includes where an employer seeks to shift employees to different roles or alter the terms of their employment contracts.
Until the collective consultation process is over, an employer cannot make a final decision as to redundancies.
What are the appropriate representatives for collective consultation?
The employer’s duty to consult with appropriate representatives refers to bodies and affiliations that can be said to act on behalf of the employees affected by the proposed redundancies. Typically, this refers to trade unions and other employee representatives who have been elected by the employee group. An employer may issue an invitation for prospectively redundant employees to elect representatives to act on their behalf.
What are the requirements of the collective consultation process?
The primary objective of the consultation process is to prevent the dismissals altogether. Failing that, the process will look to mitigate the effects of the redundancies upon the employees.
The initial step is for the employer to present their redundancy proposals to the employee representatives. The proposals must account for the employer’s reasons for making the redundancies, as well as their scope. They must also establish a neutral mechanism for choosing employees to be made redundant, as well as a formula for calculating any redundancy pay beyond statutory minimums.
Throughout the process, the employer is obliged to disclose adequate information and afford appropriate time for the representatives to respond to proposals. They are also subject to an overarching duty to pay due regard to the concerns raised by the representatives.
What remedies are available to employees for lack of or defective collective consultation?
Where collective consultation processes fail to adhere to the provisions within TULRA, the appropriate representative may apply to an employment tribunal for a protective order for a period of 90 days. During this period, employees prospectively being made redundant are entitled to weekly continuing pay.
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Contact our Collective Consultation Solicitors in Mayfair and throughout London
The Employment Law team at Lewis Nedas Law holds a broad range of experience in acting on behalf of both employers and employees in litigation and ADR, including where employers prospectively embark on collective redundancies. For expert advice from our Employment Law Solicitors, please call us on 020 7387 2032 or complete our online enquiry.