The relationship between collective and individual consultation

Even if there is no duty to consult over collective redundancies because fewer than 20 employees are affected, the employer must consult any individuals who are at risk of redundancy (See Chapters 3-5).

A good redundancy agreement will always allow for both collective and individual consultation. For example, an individual may have specific personal information or alternatives to suggest, or undisclosed skills or experience that, if known by the employer could avoid their redundancy (Heron v Citylink [1993] IRLR 372). In any event, an individual selected for redundancy must be allowed to challenge their scores in any redundancy selection exercise (see chapter 5 whether or not there has been collective consultation.

Whether a failure to consult individually as well as collectively makes a dismissal unfair will depend on the facts of the case. In Lawn & others v Hartlepool College of FE EAT/1172/99, the EAT decided that collective consultation with the unions in the period leading up to the announcement of redundancies, together with an invitation to individuals to submit their views during the appeal process, was enough to make the redundancies fair.

Similarly, a failure to engage in collective as well as individual consultation will be one factor to take into account when considering the overall fairness of a dismissal. It will not mean the dismissal is necessarily unfair (Hammonds LLP v Mwitta [2010] UKEAT 0026/10/0110, Nationwide v Benn [2010] UKEAT 0273/09/2707).