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Consultation must be in good time
[ch 11: pages 371-372]There is no statutory definition of the phrase “good time”, but there are minimum requirements:
• for proposals to dismiss as redundant 100 or more employees over a period of 90 days or less, consultation must begin at least 45 days before the first redundancy dismissal takes effect; and
• for proposals to dismiss as redundant 20 or more employees but fewer than 100 (again over a period of 90 days or less) the minimum consultation period is 30 days.
In April 2013, the minimum consultation period for dismissals of 100 or more employees was cut from 90 to 45 days. Unions fought this step which, as TUC general secretary Frances O’Grady said, is “not going to create a single extra job”.
The 45/30 day periods are minimum periods for consultation. Sometimes longer consultation will be needed (Elkouil v Coney Island [2002] IRLR 174). The duty to consult is triggered as soon as the employer is proposing to dismiss employees as redundant. There is no statutory obligation to consult under TULRCA until the employer has formulated proposals to dismiss (MSF v Refuge Assurance [2002] IRLR 324) but consultation must take place while proposals are still at a formative stage, so that the union can exercise genuine influence over the outcome and has time to respond and make counter-suggestions (Amicus v Nissan Motor Manufacturing (UK) Limited [2005] EAT/0184/05).
In UK Coal Mining Limited v National Union of Mineworkers (Northumberland Area) and Another [2008] ICR 163, the EAT ruled that the duty to consult collectively is triggered as soon as there is a clear proposal (even if provisional) that if implemented, would almost inevitably result in redundancies (as opposed to when such a strategy is merely “mooted as a possibility”). This, said the EAT, is the logical consequence of the statutory requirement to consult on ways of avoiding dismissals (section 188(2), TULRCA).
The UK Coal Mining case is also important to reps for a different reason. The EAT ruled in this case that whenever a strategic decision would inevitably result in redundancies, employers must consult with unions on the economic case for that decision, and not just on ways of implementing redundancies once the strategic decision has been taken.
USA v Nolan consultation ruling expected in 2016
In 2016, a key ruling is expected from the Court of Appeal in a long-running claim contesting the timing of consultation. Unions are not directly involved in this claim, but its outcome is likely to have important implications for collective consultation rights, on the issue of timing – at what stage must the consultation begin.
For many months, the case has been caught up with technical side-issues of jurisdiction (whether or not a valid claim can be brought against the United States government). These issues have now been resolved, leaving the path clear for the Court of Appeal to rule on the main issue, namely the stage at which collective redundancy consultation must begin. Is the duty to consult triggered as soon as there is a clear proposal, even if provisional (for example, to close a plant) which, if implemented, would inevitably result in redundancies (following the UK Coalmining ruling). Alternatively, is the duty only triggered once a closure decision has been taken by management, limiting collective consultation to narrow issues such as how redundancies are to be implemented and redundancy pay, as opposed to over whether to make the closure decision at all?
USA v Nolan [2015] UKSC 63
An employer’s duty to start consulting does not depend on them being in a position to supply reps with the statutory information listed on page 370 (Akavan Erityisalojen Keskusliitto AEK ry and others v Fujitsu Siemens Computers Oy [2010] ICR 444). As and when relevant information becomes available during consultation, it should be passed to reps. The information must be provided in writing.
A parent company’s failure to supply a subsidiary with the statutory information can never justify an employer’s failure to consult (section 188(7), TULRCA).
The duty to consult is always owed by the employer, even if the employer is a subsidiary and all the strategic decisions as to where redundancies are to be located are made by Head Office. The duty is triggered as soon as a parent company decides that redundancies are to be located within a particular subsidiary (Akavan Erityisalojen Keskusliitto AEK ry and others v Fujitsu Siemens Computers Oy [2010] ICR 444).