What is collective consultation? Collective consultation is the process where employers consult with a small number of staff representatives on behalf of a larger number of employees. This occurs most frequently when employees are affected by proposed redundancies of 20 or more staff or the transfer of the business (TUPE), but other scenarios warrant collective consultation too. Collective consultation differs from individual consultation where every employee would be consulted individually.
Situations that require collective consultations can be challenging processes to manage correctly. You need to ensure that employees are given the support and information that they need, and are treated fairly and lawfully. You must also ensure that you don’t leave yourself open for employment tribunals, unfair dismissal, negligence and discrimination claims by not following the correct procedure when it comes to collective consultation.
Neathouse Partners provide solution-driven outsourced HR support for employers. If you’re looking for support and advice about redundancy and TUPE, including holding collective consultations, then our experienced HR professionals and employment lawyers can help. We will help you to expertly navigate HR matters like these with the sensitivity and proactiveness they deserve, regardless of how complex the issue may seem.
________________________________________________________
Need expert HR guidance?
Use our contact form or call our friendly team on 01244 893776
________________________________________________________
Read on to understand when you must collectively consult with employees, how the process works and what you must do to ensure these difficult conversations are held and managed in line with UK employment law.
Collective consultation is a period of discussion between employers and employee representatives that can be used in a variety of employer and employee scenarios but it is a legal requirement and must be used;
In all cases, you can hold individual consultations with affected employees too, and whilst this is recommended to provide the support your staff will need, it’s not a requirement like the collective discussions are.
If you have more than 50 employees you may also have to consult employees if you want to make changes to the pension scheme that you offer, or if your employees request an information and consultation agreement related to other business information.
The aim of consultations is:
Whilst consultation is mandatory and you must fully consider the points raised by employees, the discussions do not have to end in agreement. You must however be able to show that the consultation was genuine and you tried to reach an agreement to prevent successful unfair dismissal claims from being made.
Redundancy is a form of dismissal from employment. For redundancies to be made, there must be a genuine business case that can prove an employee's job will no longer exist after they have left which can occur when new systems replace manual workers, the company is closing, being restructured, transferred to another company, or moving elsewhere. If you're making fewer than 20 redundancies, you do not need to collectively consult unless there's an agreement to do so but it’s still good practice to collectively consult if you can.
TUPE, short for Transfer of Undertakings (Protection of Employment) occurs when a business, or part of it, is transferred from one employer to another or when a service is transferred to a new provider. Redundancies are often needed as a result of TUPE due to combining the new company's staff with the incoming workers which can often result in too many people for the number of jobs available.
You have a responsibility to give all employees information that enables them to know the risks and allow them to participate in consultations about health and safety. This information can be shared in any way, as long as it can be understood by everyone and should include;
In all scenarios above, employees of the company are protected, so you must ensure that you follow a full and fair process when managing these often complex procedures and conversations.
When collective consultation is required, by law, you must consult any recognised trade union that exists for your employees to ensure all employees in the organisation are represented in discussions. If none exist, then you must consult employee representatives. Employee representatives may already be named in provisions made to discuss employment issues on behalf of workers, or they may be elected at the time the need to consult on redundancies arises.
Trade unions are organisations made up of employees from a given organisation that work to protect the interests of all union members in the workplace. Most trade unions are independent of the employer.
The trade union representative will:
Employee representatives may already exist through a standing committee set up to permit authorised employees to represent staff in situations that require employee representation, or via a staff election held at the time when the need for consultation arises.
In both cases, the employee representatives need to be able to:
Employee representatives and trade union representatives have the right to reasonable paid time off for carrying out their duties during the consultation, reasonable time off for training, and reasonable access to employees and workplace facilities. They must not be treated unfavourably due to the position that they hold.
If no trade union or existing employee representative panel exists, then you will need to facilitate the election of employee representatives for the consultation to take place and provide any training that is needed for them to fulfil the role.
You must ensure that:
If you are unable to find an employee representative or multiple representatives that fulfil the criteria above, then you will need to consult with all employees individually.
Whilst the exact content of consultation discussions will vary depending on the situation at hand, collective consultation should always allow for open and honest conversations between you as the employer and your employees on the proposed changes.
To prevent claims of unfair processes being followed or outcomes being reached, you must hold regularly arranged meetings that facilitate two-way discussions that allow for employee representative input on:
Employees and their representatives will often have good ideas that may help to avoid proposed redundancies but you do not have to agree to their suggestions. It is however important to seriously consider any ideas that could reduce redundancies or the impact of other proposed changes, otherwise, you put yourself at risk of employment tribunals. In all discussions held, you should fully document what topics were discussed, any suggestions made, the outcome, and reasons for decisions made.
There are minimum periods that collective consultation must take place over but there are no rules capping the length of time the discussions can last. You should check the timeframes listed in any employee handbooks or company policies in advance or consultation starting.
If you fail to consult or don’t meet consultation requirements, your employees can make a claim to an employment tribunal which if successful, means you will have to pay up to 90 days of full pay for each affected employee.
________________________________________________________
Need expert HR guidance?
Use our contact form or call our friendly team on 01244 893776
________________________________________________________
As the consultation period is the time for discussions to be held, to do this, employees or their representatives must be given the information they need to hold meaningful conversations and raise questions in advance of the consultation period starting.
This means that collective consultation periods shouldn’t start until you have provided employee representatives with all of the information below in writing:
If you are in the position of needing to make redundancies or dismissals, and 20 or more employees are at risk, you are transferring part or all of your business to another organisation, or are making changes that impact the health and safety of employees, then you will need to engage in collective consultation.
As an employer, you need to ensure you carry out this process fully and fairly to meet employment law and to protect yourself from employee tribunal action but if you don’t think that you can comply with consultation requirements, you should take legal advice as soon as possible.
To recap:
You should fully document all conversations held during the collective consultation, fully consider any suggestions made, and share the outcome and reasons for your decisions made. Taking these steps will help you to reduce the likelihood of unfair dismissal claims as you need to be able to show that the consultation was genuine and that you aimed to reach an agreement, even if no agreement was made.