Individual and collective consultation

Individual consultation is necessary for all redundancies and the law requires that collective consultation is required in the multiple redundancy situations referred to below. As an absolute minimum, organisations must follow the three key steps of the statutory disciplinary and dismissal procedure until 6 April 2009.   After 6 April 2009 companies should follow the stages of their own redundancy procedure, which as a bare minimum should encompass the stages referred to in our series of blog posts and adhere to the Acas guidance on handling redundancies.

Employers should note that the law requires meaningful consultation – it is not enough only to inform. The maximum compensation that can be awarded if an employer fails to consult is 90 days pay.

Collective consultations with recognised trade unions or elected representatives must start at least 90 days beforehand for proposed redundancy dismissals of 100 or more employees, and at least 30 days before notification of redundancies for 20–99 employees. In cases where collective consultation is required, it must be completed before notice of dismissal is given to any of the employees concerned.

Consultation should also include:

• the reason for the redundancy dismissals
• why and how individuals have been selected
• possible ways of avoiding redundancy
• possible alternative work

Selection Pool for Redundancy

In the earlier stages, employers will need to carefully determine the initial selection pool for redundancy. Unless there is a customary arrangement, an employer should identify the group of employees at the planning stage who may be made redundant. This will usually be those who undertake a similar type of work in a particular department, or work at a relevant location, or whose work has either ceased or diminished, or is expected to do so. These will be the selection pool.

In the later stages of the redundancy process, individuals must be selected from within the wider pool. Where there is a choice between employees, selection must be based on objective criteria which may include:

• length of service
• attendance records
• disciplinary records
• skills, competencies and qualifications
• work experience
• performance records

Following the age discrimination legislation, ‘last in, first out’ is now risky as a selection method. Despite this, it was always an unsatisfactory way of retaining the most competent people.

Tribunals should look favourably on selection procedures based on a points system which scores each employee against the relevant criteria. However, great care must be taken in the choice and application of the criteria to avoid factors which may be discriminatory on any grounds.

In our next post on the subject, we’ll talk about Employers’ obligations in terms of notifications both to employees and the Government.

If your company is being affected by redundancies and you would like some additional information or support, please contact us and we’ll be happy to help!