Who should be consulted 





Where there is a recognised union for the bargaining unit in which redundancies are proposed, it must be consulted. This is regardless of whether the employees at risk of redundancy are union members.





Unions are only entitled to be consulted on behalf of employees in a bargaining unit for which the union is recognised (see Chapter 5: Recognition). Where collective redundancies affect both employees in the bargaining unit and employees outside the bargaining unit, for whom the union does not have representation rights, those outside the bargaining unit must be allowed to elect their own “appropriate representatives” (see below). There is nothing to stop a trade union member from among these employees standing for election to represent co-workers outside the bargaining unit, as long as the member’s own job is at risk of redundancy. 



Where there is more than one union, 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:


• existing representatives of affected employees appointed or elected generally for consultation and information purposes (that is, a standing representative body or staff association); or





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





An existing representative body such as a staff association can only be an “appropriate representative” for this purpose if it is authorised by the employees it purports to represent, to represent their interests in the consultation. Otherwise, the employer will be liable for a protective award. It is the employer’s responsibility to prove that a standing representative body has that authority.





An existing representative body can only be an “appropriate representative” if it has the legal right under its constitution to negotiate on behalf of the employees at risk of redundancy. Mere consultation is not enough. This is because collective consultation can only be genuine if it is “with a view to reaching agreement” (section 188(2), TULRCA). A representative body without the power and authority to negotiate on behalf of affected employees cannot consult, since collective consultation must be “tantamount to a negotiation” (Junk v Kuhnel C-188/03 [2005] IRLR 310), see page 392. 





These are important issues for union members who want to challenge the involvement of an existing non-union staff body in a redundancy consultation exercise. They were explored in the next case, supported successfully by public services union UNISON:


If there is no recognised union or existing non-union representative body, the employer must organise elections, following a mandatory procedure set out in TULRCA. All employees at risk of redundancy must be invited 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, TULRCA.





If the number of candidates for election precisely matches the number of representatives required, no ballot is needed (Phillips v Xtera Communications Limited [2011] UKEAT/0244/10/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 (see page 389). 





Employee representatives and candidates for election are protected from unfair dismissal and detrimental treatment for taking on the role.