The ongoing impact of the Covid-19 pandemic on the economy means that many employers are having to contemplate making redundancies, notwithstanding the availability of Government financial support. Where over a certain number of redundancies are proposed, employers must conduct collective as well as individual consultation.
Employee representatives play an essential role in the collective redundancy process. Not only is it a legal requirement to consult appropriate representatives, but representatives who understand what is required of them and are equipped with the skills to perform their role can help to ensure that the process runs as smoothly as possible. Here, we consider the legal position regarding the obligation to consult with representatives and the benefits of providing them with appropriate training.
Legal requirement for collective consultation
Under s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), where at least 20 redundancies are proposed at the same establishment within a 90-day period, the employer must consult "appropriate representatives" of any affected employees. (There are other circumstances in which the law requires employers to consult with such representatives, most notably in the event of a TUPE transfer, but these are outside the scope of this article.)
'Affected employees' means any employees who may be affected by the proposed dismissals, or by measures taken in connection with those dismissals. This may be a larger group than those counted when determining whether collective consultation was triggered as it includes, for example, employees who are pooled for redundancy but not selected, plus any employees who might have to change their job duties or hours of work as a result of the proposals.
Consultation with representatives must be genuine and cover topics such as the reasons for the redundancies, possible ways of avoiding or reducing redundancies, ways of 'minimising the impact' of any redundancies, selection methods and timing of the redundancies. The importance of conducting collective consultation properly cannot be understated, as a poorly run process can lead to delays and have a negative impact on employee relations, both among the ‘at risk’ employees and their colleagues who are ‘safe’ from redundancy. In addition, employers may face claims for unfair dismissal and protective awards of up to 90 days’ gross pay per affected employee if they fail to conduct a proper collective consultation process.
Who are the ‘appropriate representatives’?
If the employer recognises a trade union in respect of some or all of the affected employees, it must consult with representatives of the trade union for those employees. However, if there is no recognised union for the affected employees, the employer can decide whether to consult with employee representatives who are directly elected by the affected employees for the purpose of redundancy consultation, or existing employee representatives from a standing body (such as a works council or an employee forum) if that body’s mandate is broad enough to cover redundancy consultation.
Typically, employers prefer to consult with representatives who have been directly elected by the affected employees, rather than a standing body, as it is usually more effective to consult about redundancies with representatives specifically elected for that purpose. There is also little guidance as to how an employer can demonstrate that a standing body has authority to be consulted on redundancies. That said, in the context of the Covid-19 pandemic, it may be easier for some employers to use a standing body if it has the mandate, as that would avoid having to hold an election – which may be complex or time consuming if lots of employees are away from the workplace, e.g. on furlough or working limited hours on the Job Support Scheme, self-isolating, or working from home.
Importance of training for employee representatives
Whether the employer opts to consult an existing standing body of employee representatives or to ask affected employees to elect their representatives directly, it is vital that the representatives understand what is required of them and are equipped with the skills to perform their role. An employee representative who has been newly elected may never have acted in a similar role before, so could be nervous about what is involved. They may, for example, have concerns about how they will be perceived by and how best to communicate with the employees they represent, or how to deal with potential conflict or criticism. In addition, both newly elected representatives and also existing employee representatives from a standing body are unlikely to have been involved in a collective redundancy consultation in the past, so they may be unfamiliar with the detail of the relevant law and process relating to collective redundancy consultation.
By providing appropriate training, the employer can ensure that the employee representatives have the necessary knowledge and skills to properly participate in the consultation process on behalf of their constituents.
What does employee representative training cover?
Training for employee representatives should explain the purpose of the representative’s role and their responsibilities. It can address common concerns that new representatives may have (as well as refreshing the knowledge of existing representatives), such as those identified above, and offer strategies for how to address these. Training can also help to identify the skills – both technical and also soft skills (including good communication, listening and performance in meetings) – that it is helpful for employee representatives to possess and provide tips on developing these.
Where training is tailored to employee representatives in a collective redundancy process, it will also provide a clear overview of the law on redundancy, covering such topics as when collective consultation is required and what it must address, principles for a fair selection process and alternative employment. In addition, training can give employee representatives an understanding of the importance of confidentiality, including when employers can impose a specific confidentiality obligation, what to do if an employee wants to raise an issue with their representative ‘in confidence’ and whether the employer can withhold any information from the representatives themselves.
All of this should help to build the expertise and confidence of the employee representatives and ensure they feel able to properly represent their colleagues, even if the topics under discussion are difficult ones and the process is challenging. From the employer’s perspective, having well trained employee representatives with a clear understanding of their role should help to ensure that the consultation process runs smoothly and to reduce legal risk.
How we can help
Make UK offer virtual and interactive training for employee representatives, as well as training for managers who will be responsible for running the redundancy process. Our online training programmes can be delivered at your home or office, giving you access to our experienced consultants and the ability for delegates to learn from their peers in an interactive environment that replicates a physical classroom. Click here to access further details of our online, interactive training courses and events, as well as information on other ways our Make UK HR and Legal experts can help you to manage a redundancy process effectively.
Our HR & Legal experts have also developed downloadable redundancy toolkits which give you instant access to a full suite of redundancy support to enable you to manage a robust and fair process. The toolkits have been designed to take account of logistical and technical complexities that have been created as a result of Covid-19. Make UK members can access these toolkits in the HR & Legal Resources section of our website.
If you have any queries about these resources or would like to purchase them, please call us on 0808 168 5874, or email [email protected].