Employers who propose to make 20 or more employees redundant ‘at one establishment’ over a period of 90 days or less must consult a recognised independent trade union. If no trade union is recognised, consultation must take place with other elected representatives of the affected employees (see section 188(1A) of the Trade Union and Labour Relations Act (TULRCA) 1992).
If there are no employee representatives, representatives must be elected solely for the purpose of the redundancy consultation. Detailed requirements govern the election procedures.
The consultation should include:
- ways of avoiding the redundancies or reducing the number of employees to be made redundant
- mitigating the effects of redundancies, and
- the reasons for redundancy.
The employer must consult with appropriate representatives with a view to reaching agreement. This duty applies even when the employees to be made redundant are volunteers.
It was previously thought that the duty to consult concerned only how a redundancy programme would be carried out, not if there should be redundancies at all. However, in UK Coal Mining Ltd v National Union of Mineworkers and the British Association of Colliery Management (2008), the Employment Appeal Tribunal ruled that when a business is closing down the obligation to consult over avoiding the redundancies must involve consultation over the reasons for the closures.
The basic obligation to consult originally came from EU law, but the UK has added the limitation about redundancies being ‘at one establishment’ before the need to consult applies.
For a general overview of the legislation governing redundancy, see our Redundancy Q&As.