Calculating the number of employees




Section 188, TULRCA says there must be collective consultation where 20 or more employees are proposed to be dismissed as redundant at one establishment. 




An employer must consult collectively even if it plans to redeploy some of the affected employees so that ultimately, fewer than 20 end up being dismissed. This is because the test looks at proposals to dismiss at the start of the consultation process. The fact that fewer than 20 employees eventually end up being dismissed is irrelevant (Hardy v Tourism South East UKEAT/0631/04). This is unsurprising since a key purpose of collective consultation is for unions and employers to work together from the start of the consultation period to find ways of avoiding compulsory redundancies.




The redundancy consultation provisions in TULCRA include only “employees”, but the Collective Redundancies Directive on which TULRCA is based refers to “workers”, not employees. In Balkaya v Kiesel Abbruch und Recycling Technik GmbH [2015] IRLR 771, the ECJ ruled that a non-employed director and a trainee on a government vocational training grant with no contract with the employer should both have been included in the 20-worker threshold. Anyone who is performing services for and under the direction of another person in return for remuneration is a worker and should be consulted, said the ECJ (applying the "worker" test explained in Chapter 2). By limiting the collective consultation obligation to “employees” instead of “workers”, the UK is likely to be in breach of the Directive. 


Even if there is no statutory duty to consult over collective redundancies because fewer than 20 employees are affected, there must still be individual consultation of those at risk. Otherwise the employer risks claims for unfair dismissal (see Chapter 10: Dismissal).