The employer’s obligation to provide information to reps

The employer is required to provide reps with “adequate information” for consultation. The specific categories of statutory information are listed in section 188(4) of TULRCA. This information must be provided in writing:

• reason(s) for the redundancies;

• number and descriptions of employees proposed to be made redundant;

• total number of employees of any description;

• proposed selection procedure;

• proposed method for carrying out redundancy dismissals including timescale; and

• proposals for calculating redundancy pay, if it is to exceed the statutory minimum.

In addition, under the Agency Workers Regulations 2010 (AWR 10), since 1 October 2011 employers must provide reps with information about:

• The number of temporary agency workers working for the employer;

• Where those agency workers are working; and

• What types of work they are carrying out.

Employers sometimes point to the Data Protection Act 1998 (DPA 98) to try to avoid giving information to reps. Employers need have no such concerns because the DPA 98 provides an exception for personal data supplied under a statutory obligation. In any event, much of the information can be anonymised.

An employer’s duty to start consulting does not depend on the employer being in a position to supply reps with the statutory information under section 188(4) of the TULRCA (Akavan Erityisalojen Keskusliitto AEK ry and others v Fujitsu Siemens Computers Oy ([2010] ICR 444)). Rather, the employer must begin consultation in good time, as soon as there is a proposal to make redundancy dismissals above the statutory threshold. As and when relevant information becomes available over the course of the consultation period, it should be passed to reps in writing.

A parent company’s failure to supply a subsidiary with this information will not justify a failure to consult (section 188(7) TULRCA).

The duty to consult is always owed by the employing company, even if it is a subsidiary and decisions are made by Head Office. The duty to consult is triggered as soon as a parent company decides that redundancies are to be located within a particular subsidiary (Akavan v Fujitsu [2010] ICR 444).