LRD guides and handbook May 2019

Law at Work 2019 - the trade union guide to employment law

Chapter 11

Who should be consulted 





[ch 11: pages 395-396]

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:


An employer 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 negotiation. The EAT ruled 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, could not be an “appropriate representative body” for the purposes of collective consultation. The employer was liable for a protective award. 





Kelly v The Hesley Group Limited [2013] UKEAT/0339/12/ZT





www.bailii.org/uk/cases/UKEAT/2013/0339_12_1904.html

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.