In this insight, we take a look at who to consult in a redundancy process and when to have these conversations.
Employers must consult with all those affected and not just those at risk – what does ‘affected’ mean in this context?
If there’s a change in one team, there could be knock-on effects on another team. For example, if a business is proposing to dismiss as redundant several members of the goods out team this could mean that the deliveries need to be scheduled 20 minutes later – there may be the same amount of work to be done by fewer people. The delivery drivers may not have been at risk, but their start times may be proposed to be pushed back by 20 minutes. The drivers are therefore affected by the proposals, but they aren’t at risk themselves.
This is a fairly clear-cut example. However, what if reporting lines were proposed to change or there was only a minor change in the duties of those not at risk, would you consult with those individuals?
There has been no case law on this point, but it is likely that it should be interpreted in the same way as measures proposed under Transfer of Undertakings (Protection of Employment) (TUPE), i.e. having the widest scope and covering any action, step or arrangement taken in connection with the transfer. In collective redundancy situations this would likely include any new systems of work, new working hours or shift patterns, proposed variations to contracts of employment, new reporting lines or organisational arrangements.
Can employers serve notice of redundancy/ dismissal before the end of the 30/ 45-day minimum period?
The minimum periods of 30 days (where there are between 20 and 99 proposed as redundant) and 45 days (for 100 or more) are exactly that – minimum periods. Each process will be different – some may take longer than 30/ 45 days, others may be concluded earlier, especially where there are no counterproposals put forward.
It should also be noted that the 30/ 45-days minimum period is not the minimum period for collective consultation, rather it is the period during which no dismissals can take effect (section 188(1)(A)). This wording means that provided consultation has concluded, notices of dismissal can be served during the 30/ 45 days provided they do not take effect, i.e. the person is not dismissed, until after the 30/ 45 days.
Where collective consultation with representatives has concluded it is a good idea to agree this between both parties and minute it so that the end is clearly noted.
In saying the above, to ensure that employees cannot bring any claims for unfair dismissal, individual consultation must also take place with those with over two years’ service.
It is worth noting that there are currently calls from unions to change this so that notices of redundancy cannot be served during the 30/ 45 days, even if the dismissals were to take effect afterwards.