Consultation must be with a view to agreement

Section 188(2) of TULRCA states that consultation must be “with a view to reaching an agreement”. The ECJ has confirmed that genuine consultation is tantamount to a negotiation (Junk v Kuhnel ([2005] IRLR 310). This does not mean that at the end of the discussions, employers and reps must be in agreement with the proposed arrangements but it does mean that they should carry out the talks in a spirit of seeking agreement.

Employers who make it clear from the outset that redundancy proposals will not change regardless of what representations are made are likely to be liable for a protective award.