When must consultation begin? 





Under section 188(1A), TULRCA, consultation must begin in “good time” and in any event must meet these minimum requirements:


• for proposals to dismiss as redundant 100 or more employees over a period of 90 days or less, consultation must begin at least 45 days before the first redundancy dismissal takes effect; and





• for proposals to dismiss as redundant 20 or more employees but fewer than 100 (over a period of 90 days or less) the minimum consultation period is 30 days.




The minimum consultation period for dismissals of 100 or more employees was cut from 90 to 45 days in April 2013. Unions fought this step which, as TUC general secretary Frances O’Grady said, was “not going to create a single extra job”.




The 45/30-day periods are minimum consultation periods. Sometimes longer consultation is needed (Elkouil v Coney Island [2002] IRLR 174). 



The duty to consult collectively is triggered once an employer is proposing to dismiss employees as redundant. There is no statutory obligation to consult until the employer has formulated proposals to dismiss (MSF v Refuge Assurance [2002] IRLR 324). However, consultation must take place while proposals are still at a formative stage, so that the union can exercise genuine influence over the outcome and has time to respond and make counter-suggestions (Amicus v Nissan Motor Manufacturing (UK) Limited [2005] EAT/0184/05). The fact that the employer does not know who is likely to be placed at risk of redundancy does not justify delaying consultation (Keeping Kids Company (in compulsory liquidation) v Smith and Others [2018] UKEAT/0057/17/BA). 



In UK Coal Mining Limited v National Union of Mineworkers (Northumberland Area) and Another [2008] ICR 163, the EAT ruled that the duty to consult collectively is triggered as soon as there is a clear proposal (even if provisional) that if implemented, would almost inevitably result in redundancies (as opposed to when such a strategy is merely “mooted as a possibility”). This, said the EAT, is the logical consequence of the statutory requirement to consult on ways of avoiding dismissals (section 188(2), TULRCA). 





The UK Coal Mining ruling is important to reps because the EAT confirmed in this case that whenever a strategic decision would inevitably result in redundancies, employers must consult with unions on the economic case for that decision, and not just on ways of implementing redundancies once the strategic decision has been taken. 





An employer’s duty to start consulting does not depend on the employer being able to supply reps with the statutory information listed on page 389 (Akavan Erityisalojen Keskusliitto AEK ry and others v Fujitsu Siemens Computers Oy [2010] ICR 444). Instead, as and when relevant information becomes available during consultation, it should be passed to reps. It must be provided in writing.
A parent company’s failure to supply a subsidiary with the statutory information cannot justify an employer’s failure to consult (section 188(7), TULRCA).






The duty to consult in “good time” requires the employer to look ahead and realistically assess the timescale needed to ensure meaningful consultation, especially considering the TULRCA minimum time periods (Keeping Kids Company (in compulsory liquidation) v Smith and Others [2018] UKEAT/0057/17/BA). 




The duty to consult is always owed by the employer even if that employer is a subsidiary and all the strategic decisions on the redundancies are made by Head Office. The duty is triggered as soon as a parent company decides that redundancies are to be located within a particular subsidiary (Akavan Erityisalojen Keskusliitto AEK ry and others v Fujitsu Siemens Computers Oy [2010] ICR 444).