Redundancy series: The election process

When going through a redundancy consultation, if you do not have trade union representatives in place or there is no existing employee representative group whose remit would cover collective consultation you will have to allow affected employees to elect representatives.

Note that this is wider than just those at risk. It may be that whilst they may not be at risk of redundancy, their job could change because of their colleagues’ dismissals so they should be allowed to elect representatives and should be covered in the collective consultations.

How do we arrange the election of representatives across a national workforce?

It is up to the employer as to how many representatives are needed and whether all representatives can represent all employees or whether representatives should be split to cover assigned groups or classes of employees. The logistics and location of representatives and employees should be considered when deciding these issues. For example, where 150 employees doing the same job are based at the same site two or three representatives may be sufficient. But this will not work where the employees are divided into different teams, each doing different jobs and for whom the proposals affect them differently. Often an employer will ask for a representative (or two) to cover each area of the business (marketing, sales, finance, etc.) and then another representative to cover all those not at risk in each department but who would be impacted by their colleagues’ proposed departures through changes to their jobs or workloads.

Usually, the employer will invite employees to put themselves forward as a representative if they wish to stand. Some employers ask that this nomination is seconded by another colleague. Other employers ask employees to nominate someone else. The latter can cause some issues.

If the establishment is large, or the employer is treating its whole operation as one establishment, employees may not know others in their constituency and therefore may struggle to know who to put forward as a representative. It would not be advisable to give the names of all of those at risk or affected to everyone in each constituency as this is personal data and would require consent, unless the business can rely on the exception of complying with a legal obligation. Organisational charts could potentially be issued with positions only. On a practical level, you may ask why an employee would want to nominate someone they don’t know but we have seen first-hand the issues that this brings up and therefore in larger constituencies we would suggest inviting seconded volunteers as the preferable route.

If the number of volunteers or nominations matches the number of vacancies in the correct constituencies there is no need for an election.

The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) sets out at section 188A the requirements for holding a fair election e.g., secret voting, everyone who can vote has the opportunity to do so, etc. In most cases pre-2020, postal votes or onsite voting would have been the usual way for employees to vote. However, during the pandemic when staff were not onsite and postal voting would have taken considerably more time, employers reverted to online anonymous voting. One way to do this is via an anonymised survey using an online survey platform. Provided that all employees entitled to vote have an email address these are great ways to run a swift and compliant employee representative election.

What if there is one representative proposed for a constituency but after voting it is tied three-ways? Do we have to re-run the election or should we appoint all three?

If you were to appoint all three without having said that is what you would do in the event of a tie, the process for electing representatives under section 188A could arguably be said to have not been followed – employees are entitled to vote for as many candidates as there are proposed representative slots. If an employer is proposing to have three representatives, employees should have three votes. This could result in a different outcome than if one representative is proposed (one rep: one vote).

If you haven’t said what will happen in this event in the election documentation, the safest thing to do would be to re-run the election. However, that takes time and time is often of the essence in collective consultations.

Most employers would take the risk and not run a fresh election as those voting will have already voted for their ‘favourite’ candidate, but it is worth highlighting to employees and candidates in advance what will happen if there is a tie in the votes.

What happens if a representative who is elected changes their mind and no longer wishes to be a rep or leaves employment before the end of the consultation?

An employee at risk cannot be dismissed or take voluntary redundancy before the end of the minimum 30/45-day period – they could resign, or they could decide that they no longer wish to represent their constituency, however.

The employer should set out in election form how it proposes to deal with such situations i.e. to appoint the person who was runner up, use existing reps in other constituencies, or to re-run an election (the latter should be done if nothing is said in the election documents).