Who should be consulted

Where there is a recognised union, 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 the bargaining unit for which they have recognition rights. Where a redundancy exercise affects both employees in the bargaining unit and employees for whom the union does not have recognition, the employees outside the bargaining unit must be allowed to elect their own “appropriate representatives” (see below). However, there is nothing to stop a trade union member standing for election to represent these employees, as long as he or she is an employee outside the bargaining unit whose 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:

• representatives of affected employees appointed or elected generally for consultation and information purposes (i.e. a standing representative body or staff association) or

• employee representatives elected by affected employees solely for the purpose of redundancy consultation.

A standing representative body, such as a staff association, can only be an appropriate representative if it is authorised to represent the interests of all the employees at risk of redundancy it purports to represent. Otherwise the employer will be liable for a protective award. It is the employer’s responsibility to prove that the standing representative body has that authority.

A standing representative body can only be an appropriate representative if it has the right under its constitution to negotiate on behalf of 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 that lacks power and authority to negotiate on behalf of affected employees cannot consult with a “view to reaching agreement”. The European Court of Justice has confirmed that to be effective, collective consultation must be “tantamount to a negotiation” (Junk v Kuhnel C-188/03 [2005] IRLR 310).

These issues were explored in the following case, supported by public services union UNISON:

If there is no recognised union or existing non-union representative body, the employer must organise elections for representatives, following a 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 in section 188A of TULRCA.

If the number of candidates putting themselves forward for election precisely matches the number of representatives required, no ballot is needed (Phillips v Xtera Communications Limited [2011] UKEAT/0244/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.

Employee representatives and candidates for election are protected against unfair dismissal and detrimental treatment for taking on the role.