Chapter 16Employing labour■Where the employer is proposing to dismiss 100 or
more employees at one establishment within 90 days
or less, consultation must begin 90 days before the
first dismissals take effect. In cases involving less than
100 but at least 20 employees, consultation must begin
30 days before that date.
■Appropriate representatives must be given access to
employees who are to be or may be made redundant
and facilities, e.g. a telephone and office, must be made
available to them.
The employer’s other obligation is to notify BERR of
proposed redundancies. The obligation is to give written
notice to BERR:
■at least 90 days before any notice dismissal has been
issued in the case of 100 or more redundancies;
■at least 30 days before any notice dismissal has been
issued in the case of 20 or more redundancies.
BERR has issued new regulations on notifying collective
redundancies. The Collective Redundancies (Amend-
ment) Regulations 2006 (SI 2006/2387) amend s 193 of
the TULR(C)A 1992 to make it clear that employers
must notify the Secretary of State at least 30 or 90 days
(depending on the number of redundancies) before any
notice of dismissalhas been issued rather than before the
first of the redundancies takes place. The employees thus
get the full consultation period plus pay for the notice
period plus any redundancy package.
The employer must give a copy of the notice to the
relevant appropriate representatives.
If there are special circumstances which make it not
reasonably practicable for the employer to comply with
the requirements, he must do everything that is reason-
ably practicable. If the special circumstances prevent the
full required notice being given, the employer must give
as much notice as possible. Failure to comply with the
above BERR requirements means that the employer can
be prosecuted and fined.
Complaints about failure to consult can be made to an
employment tribunal by any employee who has been or
might be dismissed as redundant or by a recognised trade
union or by any employee representative. The tribunal
may make a protective award requiring the employer to
pay remuneration for up to 90 days where 90 days’ min-
imum notice should have been given, or up to 30 days in
any other case in which consultation was required.
Consultation was firmed up by legislation in 1993
which inserted new provisions into the TULR(C)A 1992,
under which consultation must cover specific areas as
follows: (a) the reason for the redundancy proposals;
(b) the numbers and description of employees to be
dismissed; (c) the method of selection for redundancy;
(d) the procedure and timing of dismissals; and (e) the
method of calculating any non-statutory redundancy
payments, i.e. payments extra to the basic requirement.
Consultation must also include a consideration of ways
to avoid the redundancies and/or to reduce the number
to be dismissed and to mitigate the consequences of the
dismissals which do take place.
If a company is in the hands of an insolvency practi-
tioner that practitioner must also follow the above pro-
cedures, though there may be special circumstances, such
as the immediate collapse of the company, which make
this impossible.
General standards of fairness for redundancy were laid
down by the EAT in Williamsv Compair Maxam(1982).
These were the giving of maximum notice; consultation
with unions, if any; the taking of the views of more than
one person as to who should be dismissed; the require-
ment to follow any laid down procedure, e.g. last in, first
out; and, finally, an effort to find the employees con-
cerned alternative employment within the organisation.
It should be noted that in Meiklev McPhail (Charleston
Arms)(1983) the EAT stated that these guidelines would
be applied less rigidly to the smaller business.
As we have seen, when a worker is to be made re-
dundant, the ACAS code of practice and the decision in
Williamsv Compair Maxam(1982) (above) both stress
the importance of consultation. An employer who does
not act properly will no longer be able to say that, since
subsequent events justified redundancy as where the
firm was insolvent, there was no point in consultation.
An employer who fails to consult may face the more
costly claim of unfair dismissal rather than redundancy.
However, the law does not lay down that there must
always be consultation, as the Eclipse Blinds case shows,
but in most cases the law will require it.
Individual consultation may be required where the
numbers are less than 20 and even where the numbers
have been more, there has been consultation with rep-
resentatives (Mugfordv Midland Bank plc(1997)). The
case states that a tribunal will at least listen to an allega-
tion of unfairness by an individual even where the usual
methods of consultation have been carried out.
It should also be noted:■that consultation must cover employees who have
volunteered for redundancy; and555