Who should be consulted?

Consultation must be with all recognised unions, even if members of one union will not be affected (Governing Body NI Hotel and Catering College v NATFHE [1995] IRLR 83).

Where there is no recognised union, the appropriate representatives can be either:

• representatives of affected employees appointed or elected generally for consultation and information purposes (i.e. a standing representative body or staff association) or

• employee representatives elected by affected employees solely for the purpose of redundancy consultation.

If there is no recognised union or existing non-union representative body, the employer must organise elections for representatives, following a procedure set out in TULRCA. This requires the employer to invite all employees at risk of redundancy to elect employee representatives “long enough before the time when the consultation is required”. The election process must comply with rules set out in section 188A of TULRCA.

It is for the employer to prove that a standing representative body has the necessary authority to represent affected employees. In Kelly v The Hesley Group Limited [2013] UKEAT/0339/12/ZT, the employer failed to satisfy the tribunal that a joint consultative committee made up of elected, appointed and “co-opted” workers had that authority.

The EAT also said that the committee, described as a passive body whose job it was to receive and transfer information and views between the employer and employees and whose constitution prevented it carrying on negotiation, could not be an “appropriate representative body” for the purposes of collective consultation.

It is well established, following Junk v Kuhnel C-188/03 [2005] IRLR 310 that collective consultation must be “with a view to reaching agreement”.

Where the number of candidates putting themselves forward for election precisely matches the number of representatives required (so that there is no contest) no ballot is needed (Phillips v Xtera Communications Limited ([2011] UKEAT/0244/DM)).

If an employer invites affected employees to elect representatives, in good faith and with enough time, and they do not do this, the employer must provide information direct to each affected employee.

Employee representatives (and candidates for election) are protected against unfair dismissal and detrimental treatment for taking on the role. From Summer 2013, this claim will attract tribunal fees.