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 in section 188A of TULRCA.

In Kelly v The Hesley Group Limited [2013] UKEAT/0339/12/ZT, a case supported by public services union UNISON, 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 said that the committee, which it 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. Collective consultation must be “with a view to reaching agreement” (section 188(2) TULRCA) and the this means that collective consultation must be “tantamount to a negotiation” (Junk v Kuhnel C-188/03 [2005] IRLR 310). It follows, said the EAT in Kelly, that any representative body must have the authority to negotiate on behalf of the employees at risk of redundancy.

Where the number of candidates putting themselves forward for election precisely matches the number of representatives required, 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 the statutory 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.