Collective Consultation - What Is It And When It Should Be Used

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. 

HR Support For Redundancy & TUPE

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.

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Use our contact form or call our friendly team on 01244 893776

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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.

When Is Collective Consultation Needed?

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;

• If you are proposing redundancies or dismissal of 20 or more staff within 90 days, you must hold collective consultation
• If you are transferring the business (TUPE), you must hold collective consultation
• To ensure employees are aware of health and safety matters relating to their work

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: 

• to ask for and consider employee feedback on the redundancies or dismissals proposed or on changes in working practices before any final decision is made.
• to try and reach an agreement on ways to avoid the redundancies proposed or reduce the impact of any proposed changes that will take place.

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.

Reasons For Consultation Explained

Redundancy

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

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.

Health & Safety 

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;

• the risks and dangers of your employees' work or if there are changes to their work which will affect health and safety;
• what is done, or will be done to reduce or stop the risks and dangers;
• what employees should do when they come across a risk or dangerous situation; and
• Who is the registered competent person for managing health and safety

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.

How Are The Employee Representatives Chosen?

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

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:

• talk to employees about their concerns, questions, and views
• feedback employee input to you and enter negotiations with you on behalf of employees
• meet with you to try and find solutions or reach agreements on topics raised
• feedback on the outcome of discussions held with all employees

Employee Representatives

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: 

• share your proposals and related information with all other employees
• ask for any views, suggestions and questions that employees have and feed this back to you
• hold discussions with you to solve problems and reach agreements
• feedback on the outcome of discussions held with all employees

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.

How Can Employee Representatives Be Elected?

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:

• any employee standing for election is affected by the proposed redundancy when the election takes place
• enough representatives are elected to ensure all affected employees' interests are represented even in the event of sickness or absence
• candidate votes can be made secretly and are counted accurately
• affected employees are given the right to vote for an employee representative
• elected candidates have enough time to prepare for and complete consultation

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.

What Needs To Be Discussed?

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:

• the planned changes
• ways to avoid or reduce redundancies proposed
• how to reduce the effect of the redundancies
• how employees are selected for redundancy
• deciding what should be included in the redundancy package
• support available for affected employees
• how business can restructure or plan for the future

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.

How Long Should Consultation Last?

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.

• You must carry out a consultation over a minimum of 30 days before the first proposed dismissal or redundancy when 20-99 employees are at risk of redundancy.
• You must carry out a consultation over a minimum of 45 days before the first proposed dismissal or redundancy when 100 or more employees are at risk.

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.

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Need expert HR guidance? 

Use our contact form or call our friendly team on 01244 893776

________________________________________________________

What Information Do I Need To Provide?

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:

• why you need to make redundancies
• how many redundancies you're considering
• the roles at risk of redundancy
• your ideas on how you will select employees for redundancy
• your planned timeframes
• how you'll calculate redundancy pay
• if you're using agency workers, how many, where they're working and the type of work they're doing

Summary

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 must hold collective consultation when making redundancies or dismissals of 20 or more employees within 90 days or if TUPE applies about transferring the business, or parts of it to another organisation.
• You must hold collective consultation to ensure employees are aware of health and safety matters relating to their work
• You must carry out a consultation over a minimum of 30 days for 20-99 redundancies or dismissals or over a minimum of 45 days for 100 or more redundancies or dismissals.
• Consultation periods allow employees or their representatives to discuss the changes, ask any questions they have and make suggestions that could reduce the impact or number of the changes proposed.
• Employee representatives must be trade union representatives if a union exists, or else employees can be elected or standing employee committees can be called upon.
• You should fully document all discussions held including what was discussed, any suggestions made, the outcome, and reasons for decisions made.
• You do not need to reach an agreement to end the consultation but you must be able to show that you've listened to your employees and that you responded to questions and suggestions.
• Breaching the consultation requirements outlined in this article can lead to claims for compensation from either unions, representatives or employees themselves. If successful, these claims could lead to you having to pay up to 90 days of full pay for each affected employee.

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.