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Timing of dismissal notices
An employer cannot give notice of redundancy before the consultation process has been completed. This important principle was decided by the ECJ in the following case:
Irmtraud Junk’ s employer became insolvent and all employees were given notice that their employment would end in three months, which coincided with the end of the statutory collective consultation period. The ECJ held that this was wrong and that consultation must be completed before the employer can make a decision to terminate contracts of employment.
Notifying an employee, while consultation is still on-going, that the employment contract is to be terminated means that the decision to dismiss has already been taken. This is incompatible with the whole purpose of the Directive, which is to avoid or reduce redundancies.
Junk v Kuhnel [2005] IRLR 310
Some employers argue that notices of dismissal can be issued during the 45/30 day minimum statutory consultation period if consultation has already ended by then, either because everything has been agreed, or because agreement has been impossible to reach. Given the requirement for consultation to be meaningful and the wide range of issues to be discussed, any employer who cuts short the consultation period in this way — especially now that it has been cut from 90 to 45 days — will run a very high risk of a protective award, in any situation where a union is still actively trying to continue consultation. This sort of employer behaviour is far more likely in a workplace where there is no union recognition.