Keenan and Riches’BUSINESS LAW

■although consultation does not have to end in agree-
ment, it must always be carried out.
It is, perhaps rather obviously, direct discrimination
not to consult an employee about redundancy because
she is on maternity leave and presumably also those who
are on parental or adoption leave (see McGuiganv T &
G Baynes(1999)).

Redundancy and other consultation
requirements

The DTI (now BERR) has published a new guidance docu-
ment on redundancy consultation and notification. The
document also explains how the rather long-standing
obligations contained in Part IV of the TULR(C)A 1992
(see above) fit in with the new duties of consultation
under the Information and Consultation of Employees
Regulations 2004 (SI 2004/3426) (ICE), which came into
force for the larger companies on 6 April 2005.
As an answer to the question ‘Is there a minimum
period for consultation?’ the guidance states that ‘the
employer must begin the process of consultation in good
time and complete the process before any redundancy notices
are issued’ (DTI (now BERR) emphasis). The guidance
refers to a decision of the ECJ in Junkv Kühnel(2005).
This case dealt with redundancy in Germany and in
fact the 1992 Act does not impose such an obligation.
However, the then DTI’s statement could well be relied
upon in tribunals by those seeking to obtain a purposive
judgment of the 1992 Act, i.e. the Act may not say this,
but this was its purpose and intention.
The ICE Regulations require consultation and infor-
mation to be undertaken or given to employees on an
ongoing basis about issues affecting the business in which
they work. From 6 April 2005 the regulations applied
to employers with at least 150 employees. From 6 April
2007 they applied to undertakings employing at least
100 employees, and from 6 April 2008 to those with at
least 50 employees.
The guidance states that the ICE Regulations are
in addition to the 1992 Act provisions and makes the
following points:

■An employer who proposes to make collective redund-
ancies must comply with the 1992 Act, even though
he has established separate consultation arrangements
under the ICE Regulations. Thus, if a trade union is
recognised in regard to employees affected by proposed
collective redundancies, the employer must consult with
representatives of that union, even where there is a

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separate group of employees put in place as a result of

consultation requirements under the ICE Regulations.

■Where there is a separate group of employee rep-

resentatives set up under the ICE Regulations, the

employer will only be required to consult that group

if he has agreed to do so as part of a ‘negotiated agree-

ment’ under the ICE Regulations.

■An employer who is subject to the standard informa-

tion and consultation provisions in the ICE Regula-

tions need not consult employees under those provisions

if notification is made to those representatives on

each occasion, that the 1992 Act consultation duties

have been triggered and that consultation will take

place under the 1992 Act.

The role of ACAS

ACAS has now taken on redundancy pay entitlement

as an issue on which it has a duty to conciliate. The

Employment Rights (Dispute Resolution) Act 1998 con-

fers a duty on ACAS to conciliate if a person puts in

an application to an employment tribunal concerning

entitlement to redundancy pay.

Collective agreements on redundancy

The Secretary of State may, on the application of the

employer and the unions involved, make an order mod-

ifying the requirements of redundancy pay legislation if

he is satisfied that there is a collective agreement which

makes satisfactory alternative arrangements for dealing

with redundancy. The provisions of the agreement must

be ‘on the whole at least as favourable’ as the statutory

provisions, and must include, in particular, arrangements

allowing an employee to go to an independent arbitra-

tion or to make a complaint to an employment tribunal.

Other methods of termination of

the contract of service

Having considered the termination of the contract by

unfair or discriminatory dismissal or redundancy, we must

now turn to other ways in which the contract of service

may be brought to an end. These are set out below.

By notice

A contract of service can be brought to an end by either

party giving notice to the other, although, where the