The subject matter of collective consultation 




Under section 188(2), TULRCA, the employer must consult about ways of: 




• avoiding dismissals; 




• reducing the number of employees to be dismissed; and




• mitigating the consequences of dismissals.




Consultation must be sufficient and meaningful, real, embarked on in good faith and not a sham (R v British Coal ex parte Price [1994] IRLR 72). Consultation should cover the business reasons for any proposed change, closure or relocation (UK Coal Mining Limited v National Union of Mineworkers (Northumberland Area) [2008] ICR 163).




An employer who decides to make redundancies before consulting with reps is not engaging in meaningful consultation and is likely to be subject to a protective award (Middlesbrough BC v T&G and UNISON [2002] IRLR 332). So is an employer who makes it clear from the outset that redundancy proposals are non-negotiable. The mere fact that an employer has held meetings with the reps is not enough to establish fair consultation (King v Eaton [1996] IRLR 199).




All parts of the collective consultation legislation must be strictly followed (GMB and others v Susie Radin [2004] EWCA Civ. 180). Consultation must take place on each of the three statutory headings. It is not good enough just to provide an opportunity for consultation on these topics. If the employee reps do not raise them, the employer must raise them, or else risk a protective award (Kelly v The Hesley Group Limited [2013] UKEAT/0339/12/ZT). 




Meaningful consultation should include exploring all ideas reasonably suggested by the union to avoid redundancies, reduce their number and mitigate their effects. These could include, for example, finding other savings, recruitment freezes, cuts to agency staff, temporary cuts to overtime or discretionary benefits, short-term salary freezes, pay cuts, temporary flexible working arrangements, sabbaticals, secondment, unpaid leave, increased part-time work, home-working to reduce overhead and job shares. Failure to explore all reasonable ideas will expose the employer to the risk of a protective award. 




Consultation must be with a view to reaching agreement (section 188(2) of TULRCA) and genuine consultation should be “tantamount to a negotiation” (Junk v Kuhnel [2005] IRLR 310). This does not mean that at the end of the discussion, both parties must be in agreement, but it does mean that they should carry out their talks in a spirit of seeking agreement (see the Acas guide, Handling large-scale redundancies).



The employer must consider representations and counter-proposals and reply to them. If this produces revised proposals, there must be consultation on these too. Otherwise consultation will not be “with a view to reaching agreement” (PCS v Minister for the Cabinet Office [2017] EWHC 1987). 



Consultation will not be “with a view to reaching agreement” if the employer sets pre-conditions narrowing the scope of statutory consultation (see PCS Union v Minister for the Cabinet Office [2017] EWHC 1787). 


In Ferguson v Prestwick Circuits [1992] IRLR 266, the employer argued that previous experience suggested employees did not like consultation. This did not absolve the employer of the duty to consult.




Even if an employer reasonably believes there is no alternative to redundancy, it must consult. The employee may know something that alters the situation (Heron v Citylink [1993] IRLR 372). 




Equality issues should be embedded throughout the consultation process. Union reps can play an important role in making sure this happens.




Where the employer is a public sector body or a private sector employer providing public services, the Public Sector Equality Duty (PSED) applies. An Equality Impact Assessment (EIA) of any redundancy or restructuring proposal is the best way of ensuring that equality issues are properly considered. In Scotland and Wales, EIAs are a legal requirement (see Chapter 7, page 257). 




Acas guidance for employers on “large scale” and “small scale” redundancies is available from the Acas website.