The subject matter of collective consultation

Under section 188(2) of TULRCA 92, the employer must consult about ways of:

• avoiding dismissals;

• reducing the number of employees to be dismissed; and

• mitigating the consequences of the dismissals.

Consultation must be sufficient and meaningful, real and not a sham. The employer must consider representations and reply to them (R v British Coal ex parte Price [1994] IRLR 72). Consultation should cover the business reasons for any proposed change, closure or relocation (see UK Coal Mining case). An employer who decides to make redundancies before consulting with reps is not engaging in meaningful consultation and is likely to be subject to a protective award (Middlesbrough BC v T&G and UNISON [2002] IRLR 332). So is an employer who makes it clear from the outset that redundancy proposals are non-negotiable. The mere fact that the employer has held meetings with the reps is not sufficient to establish fair consultation (King v Eaton [1996] IRLR 199).

All parts of the collective consultation legislation must be strictly followed (Susie Radin [2004] EWCA Civ 180). This means that consultation must take place on each one of the three statutory headings. It is not good enough for the employer just to provide an opportunity for consultation on these topics. If they are not raised by the employee representatives, the employer must raise them (Kelly v The Hesley Group Limited [2013] UKEAT/0339/12/ZT).

“Meaningful” consultation should include exploration of all ideas reasonably suggested by the union to avoid redundancies, reduce their number and mitigate their effects. These could include, for example, finding savings elsewhere in the organisation, recruitment freezes, cuts to agency staff, temporary cuts to overtime or discretionary benefits, short-term salary freezes or pay cuts, temporary flexible working arrangements, sabbaticals, secondment, unpaid leave, increased part-time work, home working to reduce overhead and job shares.

Failure to explore all reasonable ideas will expose the employer to the risk of a protective award.

Consultation must be with a view to reaching agreement (section 188(2) of TULRCA). This means that genuine consultation should be “tantamount to a negotiation” (see Junk v Khunel [2205] IRLR 310, ). This does not mean that at the end of the discussion, both parties must be in agreement, but it does mean that they should carry out their talks in a spirit of seeking agreement.

In Ferguson v Prestwick Circuits ([1992] IRLR 266), the employer argued that previous experience suggested employees did not like consultation. This did not absolve the employer of the duty to consult.

Even if an employer reasonably believes there is no alternative to redundancy, it must consult. The employee may know something that alters the situation (Heron v Citylink [1993] IRLR 372).