Lack of information does not justify a failure to consult

The obligation to start consultation does not depend on the employer being able to supply reps with this statutory information. Instead, the Directive clearly envisages the information being provided during the consultation process rather than necessarily at the start (Akavan Erityisalojen Kesikusiiitto AEK ry v Fujitsu [2010] ICR 144). The employer must begin consultation in good time, as soon as there is a formative proposal to make 20 or more redundancy dismissals within 90 days. An employer that fails without justification to hand over information in writing promptly is likely to be failing in its statutory duty to consult “in good time” (R v British Coal ex parte Price [1994] IRLR 72)). “Meaningful” consultation demands an on-going commitment to share relevant information, as it becomes available.

Section 188(7) of TULRCA specifically states that a parent company’s failure to supply a subsidiary with information does not justify a failure to consult.

Whether information is adequate depends on individual circumstances. The employer will not necessarily be required to disclose details of precise jobs and numbers, but more than just the content of the notification to the Department for Business Information and Skills (BIS) is usually needed (MSF v GEC Ferranti [1994] IRLR 113).