Electing representatives where there is no recognised union

If there is no recognised union or suitable existing non-union representative body, the employer must organise elections for representatives. The employer must invite employees likely to be made redundant to elect employee representatives “long enough before the time when the consultation is required”, and must comply strictly with the rules set out in section 188A of TULRCA. These require the employer to:

• make arrangements to ensure a fair election;

• decide on the number of reps to be elected so that there are sufficient to represent all the groups affected;

• decide whether each group should independently elect their own reps;

• decide on reps’ term of office; and

• ensure that voting is secret and votes fairly counted.

Candidates for election must be drawn from the affected groups of employees. All affected employees have the right to stand for election and to vote.

It is the employer’s responsibility to prove that a standing representative body has the necessary authority to represent affected employees. In Kelly v The Hesley Group Limited [2013] UKEAT/0339/12/ZT, an employer failed to satisfy the tribunal that a joint consultative committee made up of elected, appointed and “co-opted” workers had that authority. The EAT said the committee, which it described as a passive body whose job it was to receive and transfer information and views between the employer and employees, and whose constitution prevented it carrying on negotiations, could not be an “appropriate representative body”.

The EAT underlined how, even though collective consultation need not result in agreement, it must be “with a view to reaching agreement” (section 188(2) TULRCA) and “tantamount to a negotiation” (Junk v Kuhnel [2005] IRLR 310), which means that any representative body must have the power to negotiate.

As long as a body has the constitutional power to negotiate, a tribunal is very unlikely to investigate whether it actually exercises that power.

Where the number of candidates putting themselves forward for election precisely matches the number of representatives required (so that in practice, there is no contest) there is no absolute requirement to hold a ballot (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 to every individual affected employee.

Employers are often tempted to rush the process for electing representatives. If insufficient steps are put in place to ensure all employees can participate including, for example, shift workers and employees on maternity or sick leave, this can result in liability for a protective award.