A company has an obligation to consult with its workforce if it is proposing to dismiss 20 or more employees at one establishment in 90 days or less for redundancy or for some other reason unconnected with the individuals concerned, such as the introduction of new contract terms. This obligation is discussed elsewhere in this Guide (collective consultation). An employer must also provide information to its employees if it is involved in the transfer of the whole or part of a business or a service provision change, and must consult on any measures that it is proposing to take in connection with that transfer or change (informing and consulting).
The mechanism that an employer can use to meet these obligations depends on its circumstances. If the affected employees are covered by a collective bargaining agreement, the employer must consult with the recognised trade union. If any of the affected employees are not covered by collective bargaining, either because the employer does not bargain with a union at all or because the recognition agreement does not cover all the affected employees, then the employer has two options.
The first option is to consult representatives that those employees have already appointed or elected for some purpose not specifically related to redundancies or transfers. The company can take up this option only if it is clear from the context in which the representatives were appointed or elected that they have authority to be consulted about redundancies or transfers on the employees' behalf. For example, someone appointed to a committee whose sole function is to organise social events is unlikely to have the relevant authority,but information and consultation representatives elected or appointed under the Information and Consultation of Employees Regulations 2004 ( general duty to inform and consult) would have.
The other option is for the company to consult with representatives who have been expressly elected by the affected employees for the purpose of consultation on the particular redundancies or transfer. If the company takes this route, it will need to ensure that the election meets the requirements set down in the legislation, set out below in 'Election requirements'.
The law lays down detailed requirements for the election of representatives for the purposes of consultation on business transfers or redundancies. These requirements are set out in the Trade Union and Labour Relations (Consolidation) Act 1992 and the Transfer of Undertakings (Protection of Employment) Regulations 2006.
The company's overall obligation is to make whatever arrangements are reasonably practical to ensure that the election is fair. The election must also meet these more specific requirements:
- Number of representatives. The company can decide how many representatives are to be elected and whether there should be general representatives for everyone, or specific representatives for specific classes of employees, such as particular operational categories. In making these decisions, however, the company must ensure that there are sufficient representatives to represent the interests of all the employees who are affected by its proposals.
- Length of office. Before the election, the company must decide how long the representatives will hold office. This must be long enough to ensure both that the representatives receive all the information to which they are entitled and that meaningful consultation can take place.
- Eligibility of candidates. Candidates for election must be employees who are affected by the company's proposals on the date of the election. No affected employee should be unreasonably excluded from standing for election. If only one candidate comes forward, that person can be appointed without an election being needed.
- Electorate. All employees who are affected by the proposals on the date of election must be entitled to vote.
- Number of votes. Each employee must be entitled to vote for as many candidates as there are to be representatives. If particular classes of employees are to have separate representatives, then each employee must be entitled to vote for as many representatives as there are to be for his or her class.
- Conduct of the election. So far as reasonably practicable, employees must be able to vote in secret. Votes must be accurately counted.
- Vacancies. If an employee stops acting as a representative for some reason, such as the fact that he or she has resigned or been dismissed, another election must be held to fill the vacancy.
If the employer invites the affected employees to elect representatives but they fail to do so within a reasonable time, it must give the employees the information it would have given to the representatives (timing of consultation ), (consulting with representatives ).