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When does consultation end?
[ch 11: pages 325-326]Consultation ends when it is formally completed, either because the parties reach agreement on all the relevant issues, or because agreement proves to be impossible. The Acas guidance for employers, How to handle collective redundancies, says that: “It is not necessary for the parties involved to reach agreement for the consultation to be complete. As long as there has been genuine consultation ‘with a view to reaching agreement’, an employer can end the consultation. This should be done only when they can demonstrate that they have listened and responded to the views and suggestions raised.”
In other words, collective consultation should not end just because 30/45 days have passed since its start, where genuine issues remain to be negotiated “with a view to reaching agreement”.
An employer cannot give notice of redundancy before the consultation process has been completed. This was decided by the European Court of Justice (ECJ) in the following case:
Ms Junk’s employer became insolvent and all employees were given notice that their employment would terminate in three months, coinciding with the end of the statutory collective consultation period. The ECJ ruled that this was wrong. Consultation must be completed before an employer can make a decision to terminate the contracts of employment.
Giving notice of dismissal to an employee at the start of, or during, the consultation period means that the decision to dismiss has already been taken. By then, it is too late to consult. This goes against the whole purpose of consultation, which is to avoid or reduce redundancies.
Junk v Kuhnel C-188/03 [2005] IRLR 310