Partner Sue Dowling, head of our Employment Law team, explains who “Appropriate Representatives are and who an employer must consult in multiple redundancy situations.
As a reminder… “where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, statutory collective consultation requirements are triggered. ”The required consultation (with “appropriate representatives”) must be “in good time and in any event - where the employer is proposing to dismiss 100 or more employees… at least 45 days, and otherwise at least 30 days – before any dismissal takes effect (Section 188 - 194 Trade Union & Labour Relations (Consolidation) Act 1992 (TULRCA).”
This blog article, part 1 of 2 (and part of a series on Collective Consultation), gives some guidance as to the requirements of Collective Consultation under the above section including:
- Who are “Appropriate Representatives”?
- What does an employer do if there are no “Appropriate Representatives”?
The second half of this article, part 2 of 2, will cover:
- What does the employer need to consult about?
- When must Collective Consultation commence?
It should however be remembered that these provisions of TULRCA are complex and the following guidance should not be used as a substitute for taking specific legal advice, particularly as the precise application of the statutory requirements in practice will invariably depend on the particular circumstances facing a particular employer and the nature of its workforce.
As a starting point, it is worth remembering that where the obligation to collectively consult exists, this essentially acts as a freeze on the implementation of the proposed dismissals, as the dismissals cannot take effect until consultation has ended.
Who are “Appropriate Representatives” with whom the employer must consult?
Where the duty arises to collectively consult, this is to consult with “appropriate representatives” (A-Reps) of the employees who may subsequently be affected by the proposed dismissals or by measures (e.g. new systems of work; new hours of work; new arrangements; proposed variations of employment contracts or new structure/reporting arrangements) taken in connection with those dismissals.
A-Reps can potentially be from three different sources:
- If the affected employees fall into a category of employees (a bargaining unit, as defined by a collective agreement) in relation to which the Trade Union is recognised by the employer. If so the Trade Union will be the A-Reps for those employees (whether or not they are members of the particular Union);
- Directly-elected employee representatives – i.e. elected by affected employees under the procedure set out in section 188(A)(1) – for the purposes of the collective consultation to be undertaken, and/or
- Employee representatives who are already elected or have been appointed to a standing body (e.g. a Works Council) not specifically for the purpose of collective consultation but with the authority to represent in that situation.
Source (2) is probably the most common and section 188A explains how the A-Reps are to be elected in this situation. This section sets out a framework for an employer to follow in order to bring about a fair election process – a list is available via the gov.uk website.
What happens if no “Appropriate Representatives are elected?
A situation which may occur (and perhaps is more likely to occur in the Coronavirus epidemic where many employees will be working from home or on furlough leave, making communications and/or employee engagement potentially more difficult to achieve) is that although an employer endeavours to put a fair election process in place, the affected employees do not engage with that process, and A-Reps are not elected. Fortunately, TULCRA provides for this situation so that where following a suitable invitation to elect, the affected employees fail to do so within a reasonable time, the employer is released from the obligation to collectively consult, although it must still give each affected employee the information required (see further below), individually.
In part 2 of this blog article, we shall explore what information needs to be provided by the employer, what consultation must take place and the timescales for compliance with section 188.
The Collective Redundancy Consultation requirements are complex and the financial penalties for failing to collectively consult, when the statutory obligation to do so is triggered, can be substantial.
Advice on this complex area of law can be obtained from partners Sue Dowling or Tim Clark, in our specialist Employment law team.
You may also find our other blog articles on Collective Consultation helpful.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
