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Consulting with non-union reps
[ch 6: page 38]Where a recognised trade union is present the employer must consult with union representatives but if this is not the case consultation can take place with employee representatives who are part of an existing consultative body, or with representatives elected solely for the purpose of consultation of this kind. Conciliation service Acas says that any existing body, for example, one formed as part of the Information and Consultation of Employees (ICE) Regulations (see page 41) “must have a broad enough remit to discuss redundancy issues”.
If the employer intends to make use of an existing body but its remit is not broad enough, the employer risks being made liable for a protective award.
In 2012 an employer (the Hesley Group Limited) used an existing “joint consultative committee” made up of elected, appointed and “co-opted” workers to carry out collective consultation on behalf of employees at risk of redundancy. The committee’s constitution prevented it carrying out negotiations.
The EAT ruled that the committee could not be an “appropriate representative body” for the purposes of collective consultation. The obligation to consult collectively had been breached, triggering liability for a protective award. It followed an earlier ruling by the European Court of Justice that, to be effective, collective consultation must be “tantamount to a negotiation” (Junk v Kuhnel C-188/03 [2005] IRLR 310).
Kelly v The Hesley Group Limited [2013] UKEAT/0339/12/ZT