In this insight, we consider questions about how best to consult during a redundancy process.
How do we deal with counterproposals?
Counterproposals should be approached with an open-mind, objectively and reasonably. Employees are often well-placed to be able to suggest alternatives to the current proposals to either save their job, reduce the number of redundancies overall or avoid any redundancies at all. Any counterproposals received should be given due consideration and feedback should be given to representatives as to whether it is workable or not. The counterproposal may not be feasible as originally suggested but the employer should see if it can develop the counterproposal further with the representatives through the collective consultation meetings, e.g. “Element x of the counterproposal would not work because of y, but we think if we were to do z instead it might.”
Consultation must be meaningful and done with a view to reaching agreement with representatives. However, it is not a negotiation. Provided the employer has considered any proposals and explained why they were rejected, the employer can ultimately determine to impose the original proposal.
How many collective consultation meetings do we have to hold?
There are several key things that need to happen in a collective process in order to comply with section 188 – Form HR1 and the section 188 information must be given to the representatives at the outset as this is the trigger for the 30/45 days commencing. Once that has been done the process has commenced.
During consultation meetings with the representatives the following must be covered:
- ways of avoiding dismissals,
- reducing the numbers of employees to be dismissed, and
- mitigating the consequences of the dismissals (section 188(2)).
Each element must be undertaken with a view to reaching agreement with the appropriate representatives. It is good practice to note these on the agenda every time to ensure they are covered at each meeting – this will also serve as a prompt for you.
Once each of these elements has been exhausted and there are no further questions or counterproposals the collective element of the consultation process can be concluded. This process may take three meetings, it may take 10 – this all depends on the representatives, the issues they raise and your responses.
How long should we leave between meetings with the representatives?
This will depend on what information has come out of the last meeting, how many questions the representatives have asked, how detailed the information needed is to respond to those questions, how long it will take to provide responses so that these can be considered in advance of the meeting, whether and how many counterproposals have been put forward, etc.
It may be that you provisionally schedule meetings in at the outset so that you have placeholders in everyone’s diaries, but these meetings are removed if information has not yet been collated and responses have not been given to the representatives. You may also need to add meetings, but this can be difficult, especially if the management team running the meetings have other diary commitments.
Remember also that whilst management will deliver the information to the representatives, those representatives will in turn need to relay it to their constituents who may then have follow-up questions and comments to feed back. Allowing time for the representatives to do this and reconvene with them to have a meaningful meeting is better than holding a meeting where little more can be said or progressed.
As a general guide, you should schedule at least two meetings a week at the outset. That way you can agree to vacate some but at least they are in the diary of all those who are required if needed.
Some employers may also create sub-groups of representatives. For example, in some constituencies there may be single roles being made redundant where no selection criteria are needed. It may therefore be appropriate for those representatives where selection criteria are required to join a separate meeting to discuss the criteria to be applied. Those representatives who do not represent anyone being scored need not attend those meetings as the content is not relevant to their constituents.
When can we start individual consultation meetings?
Those employees with two years’ service or more have the right not to be unfairly dismissed. You will therefore need to consult with them individually about their proposed redundancy as well.
This is particularly so where they have been scored after selection criteria has been applied. As there will have been collective consultation prior to this where the criteria will have been relayed to the representatives, subject to consultation and may have been agreed, the individual meetings will therefore focus on the scores that have been given to the particular employee and discussed with that employee. The employee will then have the opportunity to query or challenge their own scores as they would do in an individual meeting. They would also be able to discuss their own proposed redundancy package, the terms of which would again have been relayed and agreed with the representatives.
Due to the hiatus between the announcement of the collective process and individual consultation meetings commencing, some employers offer to hold drop-in sessions with employees. These sessions can be used to answer any individual questions employees may have. However, the employer must take care not to undermine the collective process.
The best point at which to meet with individuals is once collective consultations have progressed to the point that the proposals have been agreed, along with selection criteria (if any), suitable alternative employment, redeployment and the redundancy pay calculation. This can often be towards the end of collective consultation but need not be.
Individual consultation can take one to two weeks so you would rather be doing this alongside some of the collective consultation rather than waiting until the end of collective and then starting individual as this adds to the employee costs given that their salaries are still being paid during this time. Once an employer has embarked on a collective process time is usually of the essence.
The best thing to do in any event would be to get the representatives’ agreement to start individual consultation – whichever stage you are at – and to document that agreement in the meeting minutes.