Consultation must be in “good time”

There is no statutory definition of the phrase “good time”, but there are 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 (again over a period of 90 days or less) the minimum consultation period is 30 days.

From 6 April 2013, the minimum consultation period for dismissals of 100 or more employees was cut from 90 to 45 days. Unions fought this step which, as TUC general secretary Frances O’Grady said, is “not going to create a single extra job”.

The 45/30 day periods are minimum periods for consultation. Sometimes longer consultation will be needed. Employers must not wait until the statutory clock starts ticking before launching consultation (Elkouil v Coney Island [2002] IRLR 174). The duty to consult is triggered as soon as the employer is proposing to dismiss employees as redundant. There is no statutory obligation to consult under TULRCA until the employer has formulated proposals to dismiss (MSF v Refuge Assurance [2002] IRLR 324). However, consultation must happen 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).

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 case is also important to reps for a different reason. The EAT ruled 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 their being in a position to supply reps with the statutory information listed on page 332 (Akavan Erityisalojen Keskusliitto AEK ry and others v Fujitsu Siemens Computers Oy [2010] ICR 444). As and when relevant information becomes available during consultation, it should be passed to reps. The information must be provided in writing.

A parent company’s failure to supply a subsidiary with the statutory information can never justify an employer’s failure to consult (section 188(7) TULRCA).

The duty to consult is always owed by the employer, even if the employer is a subsidiary and all the strategic decisions as to where redundancies are to be located are made by Head Office. The duty to consult 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).