Collective Consultation ' What Do Employers Need To Know?

• Published date: 11 November 2022
• Subject Matter: Employment and HR, Unfair/ Wrongful Dismissal, Redundancy/Layoff
• Law Firm: Waterfront Solicitors LLP
• Author: Waterfront Law

In times of economic turmoil, redundancies are seldom far away. Against the backdrop of the cost-of-living crisis, unease in the financial markets resulting from political uncertainty and the continuing legacy of the COVID-19 pandemic, many companies are making cutbacks and having to find efficiencies in order to survive. Indeed, the last few weeks have seen news headlines about mass-layoffs at Twitter, the Independent and Royal Mail.

When an employer proposes to dismiss 20 or more employees at one establishment by reason of redundancy within a period of 90 days or less, it triggers an obligation for that employer to inform and consult collectively with all affected employees. But what are the key considerations for employers in these circumstances? Here are five top tips.

1. You must consult with appropriate employee representatives and notify BEIS

Where a trade union is recognised, that union must be consulted.

Otherwise, the collective consultation duty means that the employer must consult with "employee representatives", who are simply individual employees within the group of potentially redundant staff members who have been chosen by their colleagues to represent the wider group in discussions with the employer.

Consultation in these circumstances cannot start until representatives are chosen, so typically the employer will ask for volunteers to act as employee representatives and an election might be required to decide who is appointed.

The number of employee representatives is a decision for the employer, but it should ensure sufficient representatives to represent the interests of all affected employees, having regard to the number and classes of those employees. For example, where 30 employees of a retailer are at risk of redundancy and the affected workforce includes 20 sales assistants, 5 stockroom staff and 5 people in accounts, the employer should consider whether to have representatives for each of these three teams or whether to have a representative (or several representatives) for the entire affected workforce.

No affected employee should be unreasonably excluded for standing for election, and all affected employees are entitled to vote, and to vote for as many candidates as there are representatives to be elected (in relation to each employee's class of employee). Voting should be conducted in secret wherever possible.

Where collective consultation obligations apply, the employer must also formally notify the Secretary of State for the...