Number of employees
[ch 2: pages 14-15]If the employer intends to redeploy any or all of the 20 employees they are proposing to dismiss, so that fewer than 20 are ultimately dismissed, the duty to consult still applies. This was made clear in Hardy v Tourism South East UKEAT/0631/04.
Those choosing to take voluntary redundancy will count towards the 20, so long as there is a “dismissal”. In the case of Optare Group Limited v TGWU [2007] IRLR 931, where three employees took voluntary redundancy once that option was announced, the Employment Appeal Tribunal (EAT) said that although these individuals had chosen to take voluntary severance, they were still “dismissed”. This brought the total count of redundancy dismissals to 20 and the employer should have entered into collective consultation.
If an employee takes voluntary redundancy and their employment genuinely ends by mutual agreement then there is no dismissal and they will not count towards the threshold for collective consultation. Ultimately, whether or not there was a dismissal is a matter for an employment tribunal to decide (Graff Diamonds Limited v Boatwright UKEAT/0148/10/RN).