Consultation when making redundancies

Part four of ‘Seven things to think about when making redundancies’ series

4. Consultation

One of the key aspects of a fair dismissal for redundancy is consultation. So much so that a lack of consultation may in itself be enough to render the dismissal unfair.

Consultation is not the same as negotiation. It is however a genuine dialogue about the best way forward. In large scale redundancies (20 or more dismissals over a 90 day period) there is a separate legal requirement for the employer to consult employee representatives or trade union representatives, but even when only one redundancy is being proposed the employer will be expected to consult the employees who are at risk of being dismissed.

For the consultation to be genuine, it must take place when the employer’s proposals are not yet finalised. There must be room for the employer to change its plans based on the response of employees and any alternative proposals they may have. Redundancy should not therefore be announced as a fait accompli.

Rather the employer should provide employees with information about the proposed redundancies and invite them to submit their views on the proposals as a whole and also on the way in which the proposals apply to each of them personally.

This often means an initial consultation meeting with the workforce as a single group to discuss the need for redundancies generally and the way in which selection will be undertaken. This is then followed by a second phase of consultation where employees discuss their particular position once the selection criteria have been applied.

An employer does not have to accept any alternatives put forward by an employee in the consultation process – but should give them genuine and open-minded consideration. The more the employer can show that it shifted its position in response to the consultation process, the easier it will be to show that the consultation was a genuine exercise.

Where fewer than 20 redundancies are being proposed there is no formal time period over which consultation should take place.

Typically however, there would be a period of about two to three weeks during which discussions took place and the selection was made before employees would be given notice of dismissal for redundancy. This would of course vary with the number of employees in the pool for selection and any procedures the employer might have agreed with trade unions or other employee representatives.

For legal advice about making redundancies contact Andrew Masters on 01227 763939 or email asm@furleypage.co.uk