2. COLLECTIVE REDUNDANCY CONSULTATION

This Chapter sets out the legal obligations on collective redundancy consultation. The law on individual redundancy consultation is looked at in Chapters 3, 4 and 5.

The basic requirements of collective redundancy consultation are that:

• an employer has a legal duty to consult employee representatives if it proposes to make 20 or more redundancies over a period of 90 days or less; and

• an employer also has a legal duty to consult individual employees, regardless of the number of redundancies.

The law on collective consultation is found in Chapter II (section 188 onwards) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Employers must comply strictly with every part of the legislation (Susie Radin [2004] EWCA Civ 180, Kelly v The Hesley Group Limited [2013] UKEAT/0339/12/ZT). Otherwise they risk a protective award.

Under section 188 of TULRCA, an employer proposing to dismiss 20 or more employees as redundant within a 90-day period is legally obliged to provide information to and consult with “appropriate” representatives of “affected employees”. Even if those being made redundant are volunteers, there is still an obligation to consult (Optare Group Limited v TGWU [2007] IRLR 931).

Although the wording of section 188 refers to 20 or more employees “at one establishment”, in a landmark decision, USDAW v Ethel Austin Limited and Woolworths (in administration) [2013] UKEAT/0547/12/KN, the EAT decided that the words “at one establishment” must be deleted from the legislation to comply with the EU Collective Redundancies Directive (No.98/95). This means that the duty to consult collectively is now triggered when an employer proposes to dismiss at least 20 employees as redundant within 90 days, regardless of where they work, However, this decision is under appeal.

The definition of redundancy for the purposes of collective consultation is wider than that used for individual redundancy dismissals, discussed in Chapter 1.

Collective consultation law defines redundancy as any dismissal “not for a reason related to the individual concerned”. There can still be a redundancy dismissal triggering collective consultation obligations regardless of whether there is any reduction in either headcount or output. For example, employers must consult collectively where they propose to end the contracts of 20 or more employees over a 90-day period, even if they simultaneously offer them new contracts of employment containing different terms.