CONSULTATION
In the case of UK Coal Mining Ltd v. National Union of Mineworkers (Northumberland Area) and another [2008] IRLR 4 Mr Justice Elias wrote
“The obligation to consult over avoiding the proposed redundancies inevitably involves engaging with the reasons for the dismissals, and that in turn requires consultation over the reasons for the closure. Strictly it is the proposed dismissals that are the subject of consultation, and not the closure itself. It follows that if an employer planned a closure but believed that redundancies would nonetheless be avoided, there would be no need to consult over the closure decision itself, at least not pursuant to the obligations under the 1992 Act. In the context of closure, that is likely to be a very exceptional case. Where closure and dismissals are inextricably linked, the duty to consult over the reason arises. ------------ it will not be when the closure is mooted as a possibility, but only when it is fixed as a clear, albeit provisional, intention.”
If you as an employer make someone redundant then you are dismissing that employee.
The law makes it clear that as soon as you the employer are considering the prospect of redundancies you are contemplating dismissal according to the law, as soon as you are “contemplating dismissal” you are obliged to consult both workforce representatives and any individual employee you might dismiss.
Consultation means meeting with workforce representatives and with individual employees and entering into meaningful discussions which means you must provide them with relevant information as to why you are considering redundancies and why you are considering dismissing that particular individual.
It does not matter in which way those redundancies arise you must consult otherwise any dismissals will be unfair.
Consultation must be entered with a view to reaching agreement with the workforce and must attempt to avoid dismissals and must be about setting up a way to select individual employees for dismissal if it is not possible to avoid them. This is done by choosing criteria that allow you to select those to be dismissed on an objectively fair basis.
Beware potential discrimination in choosing selection criteria in particular think about how Disability and Age discrimination can occur by choosing criteria relating to sickness absence or length of service.
Section188 of the Trades Union & Labour Relations (Consolidation) Act 1992 requires consultation to take place with workforce representatives where it is thought that more than 20 redundancies will occur within a 3 month period.
Consultation must begin within good time, and in any event 90 days before redundancy of 100 or more and 30 days in any other case.
You as employer must tell the Secretary of State within the same timescales, there are set forms available for this. Failure to inform the Secretary of State is a criminal offence
Consultation with employee representatives is easy if you recognise a trade union otherwise you must organise the election of representatives.
Penalties:
If you do not follow this consultation process the Employment Tribunal will normally make Protective Awards which are usually 90 days wages for each affected employee and rarely would be less than that.
THE INDIVIDUAL SELECTION PROCESS
There must be individual consultation with every employee you consider might be made redundant; this consultation must also be meaningful.
Even if you have agreed in a collective consultation with workforce representatives that a type of employee might be made redundant, you must justify the dismissal of the particular employee under Section 98(4) of the Employment Rights Act 1998.
Guidance is given in the case of Rowell -v- Hubbard group services Ltd [1995] IRLR 195, where it was held that consultation involves giving the person consulted a fair and proper opportunity to understand fully the matters about which they are being consulted.
You, the employer must allow the consultee an opportunity to express views, and you must properly and genuinely consider those views. In order to be fair you have to provide sufficient information for the employee to actively engage in the consultation, therefore the employee must be able to understand the selection criteria and the marking system for that criteria.
The purpose of these consultations are to prevent the matter going to an employment tribunal, if possible, by providing the opportunity for differences to be resolved internally at an early stage. To achieve that purpose, the information to be provided in a redundancy must be at least sufficient to enable the employee to give a considered and informed response to the proposed decision to dismiss.
Guidance is also provided in the case of Williams & Others -v- Compair Maxam Ltd [1982] ICR 156, which suggests the following factors will be important:
- whether the selection criteria were objectively chosen and fairly applied,
- whether employees were warned and consulted about the redundancy,
- whether any alternative work was available.
If your selection criteria are objective a Tribunal should not subject the selection criteria (nor importantly the application of the criteria) to an "over-minute scrutiny" this was decided in the case of British Aerospace Plc -v- Green & Others [1995] ICR 1006.
An Employment Tribunal must consider the selection criteria applied by an employer. In order to ensure that a dismissal is fair, a reasonable employer must use objective selection criteria. Objectivity is defined as information not merely reflecting the personal opinion of the selector, but being verifiable by reference to data, such as records of attendance and efficiency.
