So what’s collective consultation? We have lived for more than 20 years with the Trade Union Labour Relations (Consolidation) Act 1992 (TULRA) requiring that where more than 20 people ‘at one establishment’ were to lose their jobs the company involved had to consult with the employees as a group, or collective, and with either their recognised trade union or nominated employee representatives. Failure to collectively consult with those affected by the change would allow those affected to receive a compensation payment of up to 12 weeks pay on top of any redundancy award they were entitled to.
So what’s changed? A recent Employment Appeals Tribunal (EAT) decision that’s what. The union USDAW took Woolworths Stores to tribunal on this very matter. They were much aggrieved that only a handful of the c4000 employees received this compensatory payment for failure to consult collectively. Such was the madness that in one town 21 staff received it where the store nearby with only 19 did not.
In response, the EAT has held that the words “at one establishment” in TULRA should be ignored. So from here onwards, until the outcome of the appeal process Woolies are sure to engage in, where you propose more than 20 employees in your business are to be made redundant, their location becomes irrelevant, and you must collectively consult.
The ‘why’ is this – TULRA did not comply with the EU Directive it was intended to implement; that had no mention of “at one establishment”. So by having that phrase, UK employees had reduced rights than their European counterparts in a similar situation.
So, as an employer what practical steps must you take when considering a redundancy and whether to consult collectively or not?
Here’s my checklist:
• If more than 100 employees are affected arrange to collectively consult with the recognised trade union or nominated employee representatives for not less than 45 days before the change is due to take effect
• If more than 20 but less than 100 employees are affected arrange to collectively consult with the recognised trade union or nominated employee representatives for not less than 30 days before the change is due to take effect
• If less than 20 staff are affected consult on an individual basis with the person involved only – remembering they have the right to be accompanied at any meetings with a trade union representative or fellow employee
• Don’t forget to advise the Government bodies through the submission of an HR1 form when more than 20 people are involved
• Consult to discuss ways to avoid the redundancies, reduce the numbers involved or mitigate the consequences of a redundancy
• You should provide the relevant representatives with sufficient information to take a useful and constructive part in the process such as:
o reasons for the proposals
o the numbers and description of employees proposed to dismiss as redundant
o the total number of employees of that description employed at the establishment in question
o the proposed method of selecting employees who may be dismissed with care being taken to ensure the criteria is free from discrimination on grounds of sex, race, age disability, religious belief or sexual orientation
o the proposed method of carrying out the dismissals, including the period over which the dismissals are to take effect, and
o the proposed method of calculating the amount of any redundancy payments to be made (other than statutory redundancy pay) to employees who may be dismissed.
• The information should be either given to the appropriate representatives in person at a consultation meeting, or posted to them and, in the case of trade union representatives, posted to the main or head office of the union.
• Think about alternative roles for redeployment and retraining, not forgetting an employee would have the statutory trial period of four weeks to determine if that new role was suitable.
And if you have done all of that you should be both pleased that you have it all in hand and relieved that it should be an ultimately fair and legal process.
So are you considering redundancies? For more help and advice about it contact us at www.threedomsolutions.co.uk or follow us on twitter @3domSolutions