4. The statutory right to consultation
[ch 4: page 49]Recognised unions must be informed and consulted collectively whenever an employer proposes to dismiss 20 or more employees at one establishment within a 90-day period “for a reason not related to the employee concerned”. This right is found in section 188, Trade Union and Labour Relations Consolidation Act 1992 (TULRCA). It is based on EU law — the Collective Redundancies Directive.
As well as collective redundancies, section 188 consultation rights are also triggered by any proposal to end the employment contracts of 20 or more employees over a 90-day period and to re-engage them on new terms and conditions (so called “dismissal and re-engagement” — see Chapter 1). This is the case even if there is no intention to reduce the number of employees (GMB v Man Truck & Bus UK Ltd [2000] IRLR 636, EAT).
An employer that fails to consult risks being taken to the Employment Tribunal (ET) and made to pay a penalty, known as a protective award.