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/0931/04 [2005] IRLR 242). This is unsurprising since one of the key purposes 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 count only “employees” when working out whether the minimum threshold (20 or more) has been reached. However, the Collective Redundancies Directive on which TULRCA is based refers to “workers” , not employees. In a German case referred to the ECJ, Balkaya v Kiesel Abbruch und Recycling Technik GmbH [2015] IRLR 771, the ECJ ruled that both a non-employed director and a trainee on a government vocational training grant with no contract with the employer should have been included. As long as an individual is performing services for and under the direction of another person in return for remuneration, they will be a worker and should be consulted, said the ECJ. The absence of an employment contract does not prevent the consultation obligation arising under European law. By limiting the collective consultation obligation to “employees”, TULCRA breaches the Directive.