Employees are entitled to be consulted, through representatives, about proposed
redundancies. However, employers should first consider whether there are any
alternatives to redundancy and if so what these are. If there are no alternatives
the following steps should be taken:
- Employers should decide on the number of employees
to be made redundant and, if more than 20, must undertake collective consultation.
must consult “Appropriate Representatives” about collective redundancies
where it is proposed to make 20 or more redundancies at one establishment
within a period of 90 days or less.
- “Appropriate Representatives” are either employee representatives
elected by the employees or (if the employees are of a description in respect
of which an independent trade union is recognised by the employer) representatives
of that trade union.
- If an employer does not recognise a trade union, then he
must invite the employees to elect representatives to allow consultation
to take place.
The rules for the election of employee representatives are as follows:
The employer shall make such arrangements as are reasonably practical to
ensure that the election is fair
b) The employer shall determine the
number of representatives to be elected
so that there are sufficient representatives to represent the interests
of all the affected employees, having regard to the number and classes
c) The employer shall determine whether the affected employees
should be represented either by representatives of all the affected employees
or by representatives
of particular classes of those employees.
d) Before the election the employer
shall determine the term of office as employee representatives so that it
is of sufficient length to enable relevant
information to be given and consultations to be completed.
e) The candidates
for election as employee representatives are affected employees on the date
of the election.
f) No affected employee is unreasonably excluded from standing
g) All affected employees on the date of the election are
entitled to vote for employee representatives.
h) The employees entitled to
vote may vote for as many candidates as there are representatives to be elected
to represent them; or, if there are to be
representatives for particular classes of employees, for as many candidates
as there are representatives to be elected to represent their particular
class of employee.
i) The election is conducted so as to secure that –
- so far as is
reasonably practicable, those voting do so in secret, and
- the votes
given at the election are accurately counted.
- Where an employee representative is elected in accordance with these
rules but subsequently ceases to act as such and, in consequence, certain
employees are no longer represented, another election should be held satisfying
set out at (a), (e), (f) and (i) above.
- The overriding requirement is that consultation must begin in “good
time” but the legislation does lay down certain minimum periods
for which the consultation must last. These are :-
(a) if the proposal
is to dismiss 100 or more employees at one establishment within a
period of 90 days or less, the consultation must begin at least
90 days before the first dismissals take effect
(B) otherwise, at
least 30 days before the first dismissals take effect where 20-99
employees are to be dismissed
- Employers are required to disclose the following information in writing
to the Appropriate Representatives :-
(a) the reasons for the redundancy proposals
(b) the number and description of the employees whom it is proposed to dismiss
(c) the total number of employees of any such description employed
by the employer at the establishment in question
(d) the proposed method of
selecting the employees who may be dismissed
(e) the proposed method of carrying out the dismissals, with due regard to
any agreed procedure, including the period over which the dismissals are
to take effect, and
(f) the proposed method of calculating redundancy payments
for individual employees, if this is different to the statutory scheme
- The information has to be either delivered to the Appropriate Representatives
by hand or posted to an address nominated by the Representatives because
of the requirement that the information must be disclosed in writing, it
not be sufficient for the information to be given verbally, eg. over the
- Consultation must be about ways of :-
(a) avoiding the dismissals
(b) reducing the numbers of employees to be dismissed, and
(b) mitigating the consequences of the dismissals
- Consultation must also be “with a view to seeking agreement”.
In other words it cannot be a sham. The employer must enter into consultation
with an open mind on the basis that it may actually affect what happens
must begin when proposals are still at a formative stage and the Representatives
must have been given adequate information upon which
to respond and adequate time in which to do so. The employer must then
consciously consider any response put forward by the Representatives
consultation is essential where there are more than 20 employees involved
and an employer will only be excused if there are “special
circumstances” which render it not reasonably practicable for the
employer to comply with all of the statutory requirements. Even in these
however an employer must still comply so far as is reasonably practicable
in the circumstances
- If an employer fails to supply all the required
information or comply with its obligations about consultation, then an
application may be made
an Employment Tribunal for compensation called a “Protective Award”.
The maximum award will be 90 days’ pay for each employee where 100
or more employees are to be made redundant or 30 days’ pay for each
employee in other cases.
An employee may make a complaint to an Employment Tribunal that an employer
has failed to meet the requirements under TULR(C) A to inform and consult.
Complaints about a failure relating to the election of employee representatives
may be made by any of the affected employees or by any of the employees who
have been dismissed as redundant. A complaint about any other failure relating
to employee representatives may be made by any of the representatives to
whom the failure related. A complaint about a failure relating to trade union
representatives may be made by the trade union. In any other case, a complaint
may be made by any of the affected employees or by any of the employees who
have been dismissed as redundant.
The employer is required to pay employees covered by a protective award their
normal week’s pay for each week of a specified period, known as the protected
period, regardless of whether or not they are still working. To be covered
by an award, they must be employees whom the employer plans to dismiss or has
already dismissed as redundant and they must be employees in whose case the
employer has failed to comply with the consultation requirements under TULR(C)
A. The protected period will begin with the date on which the first dismissal
takes effect or the date of the tribunal award - whichever is earlier. The
length of the period will be determined by the tribunal, taking into account
the extent of the employer’s failure to consult and any extenuating circumstances.
It is however subject to an upper limit of ninety days in all cases.
A complaint will not normally be considered unless it is
made within three months of the date on which the last of the dismissals takes
in exceptional cases where the tribunal considers that it was not reasonably
practicable for a complaint to be made in time it can allow a longer period).
Where the tribunal finds a complaint justified it will make
a declaration to that effect. In appropriate cases, whether or not the employees
employed, the tribunal may take steps to safeguard the employees’ remuneration
by making a "protective award". It can do this at the same time
as it makes the declaration or later, after a further application to the
Selection for Redundancy
- The criteria used to select employees for redundacy should
be as objective as possible. Consider last in first in (“LIFO”),
skills and performance, attendance and disciplinary record, experience and
each criterion should have equal weight
- In considering the pools from
which employees will be selected for redundancy, consideration must be given
to the type of work carried out by the employees
including whether jobs are interchangeable, whether other groups of employees
are doing similar work to those in the group from which selection is proposed
to be made and whether an employee’s inclusion in a pool is consistent
with his or her previous position
- The employer must then ensure that the
individuals chosen to make the selections for redundancy are properly capable
of assessing the individuals
in the pools
for selection and ensure that they have been given guidance on how to apply
the selection criteria.
Announcement to Workforce
- At the outset of the redundancy programme it is
advisable that a general announcement about the proposed redundancies is
made to confirm the reasons
for the proposed
redundancy exercise and to confirm that no decisions will be taken without
full consultation with employees in the areas affected. This announcement
can either be by way of general letter or general meeting. There should then
individual letters to employees in the areas affected inviting voluntary
Individual Consultative Meetings
- Notwithstanding any obligations for collective
consultation employees should also be consulted on an individual basis
should be advised fully as to how their position may be affected, the way
in which they may be selected for redundancy, how the redundancies
are to be carried out including the period of time over which it is proposed
the redundancies are to be implemented. Employers should ensure employees
have a full opportunity to make representations
- There should be an initial
meeting with each employee to explain that the employee is considered to
be a potential candidate for redundancy.
The selection criteria
should be explained to the employee. The employer should also indicate
what consideration has been given to the possibility of alternative employment
and if none is available this should be explained to the employee
- There should
then if possible be a second meeting ideally at least two weeks after the
first meeting. At this meeting the employee should be given
to submit any further representations which have occurred to him or her
since the initial meeting. Further individual consultative meetings may be
necessary depending upon what the employee says and time constraints.
Periods of Notice
- Individual notices of dismissal may not normally
be issued to employees in a collective redundancy situation until the consultation
been completed in accordance with these statutory requirements (unless the “Special
circumstances” defence exists. The required notice period will
depend on what an individual’s contract of employment provides
for, subject to the minimum periods set out in section 86 of the Employment
- Employers should try to offer suitable alternative employment if available
and this should be discussed in the individual consultative meetings with
the employees as well as in the collective consultative meetings with the
- If an alternative position is offered to and
accepted by an employee the employee has a statutory right to a trial period
of 4 weeks in the alternative
job. The effect of the trial period is to give the employee a chance
to decide whether the new job is suitable.
- The trial period may be extended
to retrain the employee for the new work, by agreement between the employer
and the employee. Such agreements must
be made before the employee starts the new work; must be in writing; and must
specify the date that the trial period ends and terms and conditions of employment
that will apply after that date.
- If the employee leaves or gives notice
within the trial period the employee will get a redundancy payment only if
the job was unsuitable and he or she
did not act unreasonably in leaving it (subject of course to the employee
having 2 years’ continuous service). If an employee is dismissed within
the trial period the employee will get a redundancy payment unless the dismissal
is for any reason unconnected with the fact that he or she is on trial in
the new job.
- If possible individuals should be
advised of the decision to make them redundant in a brief meeting. This can
be then confirmed in writing. Employers
ensure employees are given their full contractual notice or they receive
an appropriate payment in lieu. Employers may also wish to consider providing
assistance in looking for a new job by liaising with employment agencies/job
Time off for Interviews
- If employees are required to work during their notice period they are
entitled to reasonable time off with pay. This should be agreed by the individual
notice with his or her direct manager.
1. Are redundancies necessary?
2. How many redundancies are there to be. Are there more than 20 within 90
days or less?
3.* Elect Employee Representatives if more than 20 redundancies proposed.
4 (a) Decide upon appropriate selection criteria/pools for selection and
the selection panel.
(b) Commence consultation with Employee Representatives.
(c) General announcement to the workforce (invite voluntary redundancies).
(d) Notification to Department of Employment.
5. First individual consultative meeting. Discuss alternative employment
if there is any.
6. Apply the selection criteria.
7. Further individual consultative meeting to advise employees on provisional
selections. Has anything been said to change the position? Is further individual
consultation necessary? Is there a need to reconsider the application of
8. If employees take up offers of alternative employment, remember the
statutory trial period of 4 weeks.
9. Confirm the redundancies to the employees concerned in writing. Ensure
proper contractual notice is given or employees are given an appropriate
lieu. Confirm redundancy entitlement. Remember the employee is entitled
to reasonable time off to look for work if he or she is working during
notice period. Consider help for employees to look for new employment.
* NB. assumes no existing Employee Representatives and that there is no
recognised Trade Union.
CRITERIA MARKING SYSTEM
(By way of example only – criteria should only be adopted after consultation
and, if possible, agreement)
|Redundancy Selection Factors Points
||Length of Service
||01 to 05 years
||05 to 10 years
||10 to 15 years
||Over 15 years
||Performance in present job
||Attitude to job/company
(By way of example only)
|Name of Employee
Production Line Manager
Production Line Manager
Production Line Manager
|Branch of Employment
|Length of Service
|Performance in present job
|Attitude to job/company