The subject matter of collective consultation

Under section 188(2) of TULRCA 92, the employer must consult about ways of:

• avoiding dismissals;

• reducing the number of employees to be dismissed; and

• mitigating the consequences of dismissals.

Consultation must be sufficient and meaningful, real and not a sham. The employer must consider representations and reply to them (R v British Coal ex parte Price [1994] IRLR 72). Consultation should cover the business reasons for any proposed change, closure or relocation (UK Coal Mining Limited v National Union of Mineworkers (Northumberland Area) [2008] ICR 163).

An employer who decides to make redundancies before consulting with reps is not engaging in meaningful consultation and is likely to be subject to a protective award (Middlesbrough BC v T&G and UNISON [2002] IRLR 332). So too is an employer who makes it clear from the outset that redundancy proposals are non-negotiable. The mere fact that an employer has held meetings with the reps is not sufficient to establish fair consultation (King v Eaton [1996] IRLR 199).

All parts of the collective consultation legislation must be strictly followed (GMB and others v Susie Radin [2004] EWCA Civ. 180). Consultation must take place on each of the three statutory headings. It is not good enough just to provide an opportunity for consultation on these topics. If the employee reps do not raise them, the employer must raise them, or else risk a protective award (Kelly v The Hesley Group Limited [2013] UKEAT/0339/12/ZT).

“Meaningful” consultation should include exploring all ideas reasonably suggested by the union to avoid redundancies, reduce their number and mitigate their effects. These could include, for example, finding other savings, recruitment freezes, cuts to agency staff, temporary cuts to overtime or discretionary benefits, short-term salary freezes, pay cuts, temporary flexible working arrangements, sabbaticals, secondment, unpaid leave, increased part-time work, home working to reduce overhead and job shares. Failure to explore all reasonable ideas will expose the employer to the risk of a protective award.

Consultation must be with a view to reaching agreement (section 188(2) of TULRCA) and genuine consultation should be “tantamount to a negotiation” (Junk v Khunel [2005] IRLR 310). This does not mean that at the end of the discussion, both parties must be in agreement, but it does mean that they should carry out their talks in a spirit of seeking agreement.

In Ferguson v Prestwick Circuits [1992] IRLR 266, the employer argued that previous experience suggested employees did not like consultation. This did not absolve the employer of the duty to consult.

Even if an employer reasonably believes there is no alternative to redundancy, it must consult. The employee may know something that alters the situation (Heron v Citylink [1993] IRLR 372).