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When does consultation end?
[ch 11: page 378]Consultation ends when it is formally completed, either because the parties reach agreement on all the relevant issues or because agreement proves impossible. In other words, collective consultation should not end just because 30/45 days have passed since the consultation start date. Where genuine issues remain to be negotiated “with a view to reaching agreement”, it should continue.
An employer cannot give notice of redundancy before the consultation process has been completed. This was decided by the ECJ in the following case:
Ms Junk’s employer became insolvent and all employees were given notice that their employment would terminate in three months, coinciding with the end of the statutory collective consultation period. The ECJ ruled that this was wrong. Consultation must be completed before an employer can decide to terminate the contracts of employment. Giving notice of dismissal to an employee at the start of, or during, a consultation period means that the decision to dismiss has already been taken. By then it is too late to consult. This goes against the whole purpose of consultation, which is to avoid or reduce redundancies.
Junk v Kuhnel C-188/03 [2005] IRLR 310