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Collective consultation

What is collective consultation?

If an employer is seeking to make redundancies, they will often be obliged to go through a collective consultation process.

In a collective consultation process, the employer must consult with either a trade union representative or an employee representative, if employees do not have a recognised trade union.

As part of the process, employers will discuss and agree with the trade union or employee representatives on how the redundancy process will be carried out.

When do employers need to collectively consult employees?

Employers must follow a collective consultation process where all the following criteria apply:

  • Twenty or more redundancies are required
  • The redundancies will take place within a 90-day period
  • The redundancies will all come from a single ‘establishment’. In practice, this is often interpreted as meaning the local unit or entity in which an individual works. This interpretation was cast into doubt for some time by the case of USDAW and another v WW Realisation 1 Ltd (in liquidation)/Ethel Austin Ltd and another (a very long-running case involving the closure of multiple Woolworths and Ethel Austin stores) but, following the Court of Appeal decision in this case, this appears to be the settled position in the UK.

Consultation will not always end in an agreement, but employers should conduct consultation in good faith, with a view to reaching an agreement if possible.

Collective consultation steps

Employers entering a period of collective consultation should take the following steps:

  1. Notify the Redundancy Payments Service. Employers must do this before discussing redundancy with employees and at least 30 days before the first dismissal. If more than 100 employers are to be made redundant, this notification must be made 45 days in advance of any dismissals.
  2. Consult with appropriate representatives, this will either be trade union representatives or elected staff representatives. If there are no elected representatives, employers must consult with staff directly.
  3. Provide staff or their representatives with information about the proposed redundancies. Staff must be given enough time to consider the proposals before the employer moves on to the next step of the process. Employers must provide responses to requests for further information.
  4. Provide staff selected for redundancy with termination notices, outlining the date on which they will leave the business.
  5. Following the conclusion of the consultation process, the employer must issue redundancy notices.