When consultation is required
In certain circumstances consultation is legally required and involves a specific process.
If you're an employer and you're not sure whether you need to consult in your situation, you could choose to carry out consultation anyway to help avoid any risks. You should get legal advice if you want to check if it will be a legal requirement.
'Collective consultation' is when an employer consults with a recognised trade union or employee representatives.
An employer must collectively consult if they propose to dismiss and rehire or plan to make redundant 20 or more employees:
- at one establishment
- within a period of 90 days or less
An 'establishment' might be wider than a single workplace, but not necessarily as wide as the whole organisation.
Employers must collectively consult to explore how to:
- avoid the dismissals or redundancies
- reduce the number of dismissals or redundancies
- limit the consequences of the dismissals or redundancies within the organisation
The law says employers must start this consultation 'in good time'. What counts as in good time will depend on the circumstances. However, they must start consultation:
- at least 30 days before the first proposed dismissal or redundancy, if there are between 20 and 99 employees
- at least 45 days before the first proposed dismissal or redundancy, if there are 100 or more employees
If employers do not collectively consult
If employers do not meet collective consultation requirements, employees can make a claim to an employment tribunal.
If the claim is successful, employers might have to pay their employee or employees compensation (a 'protective award'). This can be up to 90 days' full pay for each affected employee.
Health and safety
By law, employers must consult with employees on health and safety matters.
If a recognised trade union has safety representatives, employers must consult with them on matters affecting the employees they represent.
Employers must also consult any employees not in groups covered by trade union safety representatives. Employers can choose to consult directly with the employees or their elected representatives.
The Information and Consultation of Employees (ICE) Regulations
If there are 50 or more employees in the organisation, they have the right to request a formal agreement to be informed and consulted on important matters and decisions.
This agreement is also known as an ICE agreement because it's part of the 'Information and Consultation of Employees' regulations.
Making changes to employment contracts
In certain circumstances employers have to legally consult over employment contract changes. They should fully consult with all affected employees and any relevant employee representatives.
By law, employers must hold collective consultation where all of the following apply:
- they're planning 20 or more redundancies
- the redundancies are in one establishment – not necessarily in the organisation as a whole, which may be much larger
- they plan to make the redundancies within 90 days
Employers should also consult with employees individually.
If there are fewer than 20 redundancies
As an employer, if you're making fewer than 20 redundancies, you do not need to collectively consult unless there's an agreement to do so. However, it's still good practice to collectively consult if you can.
You must still consult your employees individually but you could also consult them in small groups.
By law, employers must hold collective consultation if:
- the reason for the dismissal is 'for some other substantial reason' and not related to the individual
- they're planning 20 or more dismissals
- the dismissals are in one establishment – not necessarily in the organisation as a whole, which may be much larger
- they plan to make the dismissals within 90 days
It might be considered 'some other substantial reason' if, for example:
- their business is in severe financial distress
- they've already made exhaustive attempts to reach agreement on changes
- there's genuinely no other option but to dismiss someone
For this type of dismissal, employers must follow the same process as for collective consultation in redundancy situations.
Before a TUPE transfer, both the old and new employers must inform and consult with staff representatives (trade union or employee representatives) to explain why the transfer is happening and any changes they're proposing.
Employers must consult with trade union or elected employee representatives about any changes to working practices they're planning as part of the transfer.