Calculating the number of employees

Section 188, TULRCA says there must be collective consultation where 20 or more employees are proposed to be dismissed as redundant at one establishment. There must be collective consultation even if the employer plans to redeploy some of the affected employees so that ultimately, fewer than 20 end up being dismissed. This is because the test looks at proposals to dismiss at the start of the consultation process. The fact that fewer than 20 employees eventually end up being dismissed is irrelevant (Hardy v Tourism South East UKEAT/0631/04). This is unsurprising, since the whole idea of collective consultation is for unions and employers to work together from the start of the consultation period to find ways of avoiding compulsory redundancies or mitigating their effects.

Even if there is no statutory duty to consult over collective redundancies because fewer than 20 employees are affected, there must be individual consultation of those at risk. Otherwise the employer risks claims for unfair dismissal (see Chapter 10: Dismissal).