How to carry out Collective Consultation for Redundancies

Continuing our series of articles on the redundancy process and, as explained last week where we discussed individual consultation, this week we cover collective consultation when making redundancies.

Carrying out collective consultation is a legal requirement when an organisation proposes to make twenty or more redundancies at one establishment within any 90-day period. You will recall from previous articles that under these circumstances the consultation process must last for at least 30 days, with that timescale increasing to 45 days when proposing a hundred redundancies or more.

We described last week how organisations tend to consult individually when making a handful of redundancies but even though it is allowed to do this individually for up to 19 employees, once the number gets above seven or eight the process becomes quite unwieldy and so they often revert to collective consultation even though there is no legal requirement to do so.

Where an organisation chooses to consult collectively for less than 20 proposed redundancies there is no legal minimum timeframe for the consultation period so we would normally recommend a 15-day process similar to the individual consultation method explained last week, although if Representatives need to be elected as explained below then the process is likely to take a little longer.

The collective consultation process involves:

• Appointing Representatives then preparing them for the role.
• Holding the first collective consultation meeting with Representatives.
• Further consultation meetings.
• Final collective consultation meeting.
• Individual consultation meetings following collective consultation.

For more details about the redundancy consultation process or redundancies in general please see our free guide 8 Steps to Making Redundancies

Alternatively, 186hr has produced a comprehensive guide to making redundancies that includes detailed explanations of how to carry out each stage of the process, model policy documents, letters and other documents that have been provided by ACAS and CIPD along with 2 hours of consultation with a highly CIPD qualified senior HR professional to help you tailor the process to your organisational needs.

We’ll now look at the 5 stages of collective consultation in more detail.

Appointing Representatives then preparing them for the role

If the organisation recognises a trade union, Representatives will already be in place. Likewise the employer may have elected Representatives for a different purpose in the past and it would be fine to appoint those individuals as Representatives for collective redundancy consultation purposes.

Where a union is not recognised and Representatives have not been previously elected the organisation will need to arrange a secret ballot to elect Representatives. We find that employers are often surprised when we advise a secret ballot as it seems to them to be a bit of a throwback to the 1970’s but it is a legal requirement, and the penalties for failure to follow a reasonable process when making redundancies, especially regarding collective consultation, are quite severe.

Please see the above guide for a fuller explanation of the ballot process, guidelines to ensure you follow the legal process, a ballot document to use and the CIPD model letter to send to each Representative appointed, confirming their appointment in writing.

Prior to the consultation process starting we recommend that the employer holds a meeting with all Representatives to see if they have any queries about the role and also agree which Representative will represent which employees, remembering to include individuals on maternity leave, parental leave, sickness absence, holidays etc.

As part of the above meeting we would advise explaining to the Representatives that, before each consultation meeting, they should speak with the individuals they are representing and ask if they have any queries to be raised; alternatives to the company proposal they wish to put forward; or suggestions on how the company can avoid or reduce redundancies e.g. through providing Suitable Alternative Employment (a legal term, as covered previously). All of these will be discussed in the next consultation meeting.

The Representatives should then bring the above responses from the employees they are representing to the first consultation meeting, which should be chaired by a senior employee (ideally a HR Manager) chosen by the employer to manage the consultation process.

Hold first collective consultation meeting with Representatives

The 30/45 day consultation process clock only starts ticking from the date of the first consultation meeting.

As covered in our article two weeks ago, the organisation will have appointed an individual to manage the consultation process, normally from HR, and also a senior manager or director who will make decisions such as whether any alternatives raised are viable and which roles will be made redundant. This individual does not need to attend the consultation meetings.

The first consultation meeting should include at least the following:

• Ensure all Representatives are clear on their roles, and that all employees affected by the proposal have a Representative – including those on maternity leave etc.
• Any union involvement, whether for individuals or if the union is recognised by the company and is involved in the process.
• Confirm which roles are at risk of redundancy.
•  Explain why each specific role was chosen to be at risk of redundancy, and an explanation of which roles if any have been ‘pooled’ (see our previous articles or the above redundancy guide for a full explanation of this important requirement).
• The roles available under the new structure for those at risk to apply for. Hand out Job Descriptions for Representatives to provide to the individuals they are representing. Also make them aware of any other vacancies in the organisation. You may wish to give staff whose roles are at risk preference in the recruitment process for these wider roles but that is your choice, not a legal requirement.
• An explanation of the Selection Process to be followed when deciding who will be appointed into the available roles. If using a matrix approach (recommended, see previous articles or the above redundancy guide for a full explanation) explain the criteria and scoring system that will be used. The Representatives should be allowed to query or challenge the selection process to be followed.

Individuals are entitled to be informed of their scores in the assessed areas if they request this. They are not entitled to be told other employees’ scores.

• Discuss voluntary redundancy if you are offering this.
• Explain that the purpose of the consultation process is to try and reduce or avoid the need for redundancies. Ask whether they or the staff they are representing have any alternative proposals to the company proposal that may achieve this.
• Ask whether they or the staff they are representing have any suggestions they wish the company to consider that would avoid or reduce the need for redundancies e.g. any Suitable Alternative Employment for individuals or groups.
• What queries they or the staff they are representing have. Confirm how these will be answered (see below re Q and A doc).
• What happens next – clarify any alternatives you will look into, any suggestions to reduce or avoid redundancies and queries you will look into, date of next meeting.

Following each round of consultation meetings we recommend you send round to all those at risk of redundancy a Q and A document covering the alternatives or suggestions that were raised, if any, and all queries that were asked and the company’s answers. An example document is included in the above guide.

Clearly any confidential queries should be dealt with privately and not included in this document.

Further consultation meetings

Most companies decide to hold meetings weekly, although if you have a 30 or 45-day process you may wish to start weekly but then move to fortnightly meetings as generally we find that alternatives and queries are raised in the first 2-3 meetings of any consultation process and there is little to say in the middle few weekly meetings of a 45-day consultation period.

Such meetings should be broadly similar to the first, and include:

• Any union involvement, whether for individuals or if the union is recognised by the company and is involved in the process.
• Any further vacancies that have become available since the last consultation meeting.
• An update of where the company is up to in the recruitment process for available roles.
• The organisation’s response to any alternative proposals to the company proposal that were put forward in the previous meeting.
• Whether the Representatives have, or have been requested to put forward, any further alternatives to the company proposal.
• An update on any proposals to avoid or reduce the number of redundancies that were put forward in the previous meeting.
• Whether the Representatives have, or have been requested to put forward, any further proposals to avoid or reduce the number of redundancies.
• Any queries that the Representatives wish to put forward or have been requested to put forward.
• What happens next – clarify any alternatives and / or proposals you will look into, any queries you will look into, date of next meeting.

Again, we would recommend a Q and A document is circulated amongst all ‘at risk’ employees after each consultation meeting, via the Representatives if appropriate.

Clearly consultation meetings should be held face to face where possible but if not, it would be acceptable to hold them over the phone or via Skype, Zoom etc.

Final Collective Consultation Meeting

The final consultation meeting should be broadly similar to the second and subsequent meetings (see above), although there should be more information given regarding ‘what happens next’, including the following:

• Explain when the consultation process will close.
• Prior to the close of the consultation process the company will hold an Individual consultation meeting with all those whose roles may be made redundant.
• This is the final collective consultation meeting that we have planned.
• If an alternative proposal or other issue is raised that means we need to extend the consultation process we will let you know.
• If you or anyone you represent wish to propose an alternative to the company’s plan, or other actions that may reduce or avoid the need for redundancies please do so by the close of the consultation process.
• On DATE the company will review any alternative proposals that have been proposed, make decisions and inform you of those decisions.
• Anyone who is made redundant following this process will receive their notice of redundancy letter soon after.
• Anyone appointed into a new role during or following this process will receive a letter confirming this in writing, including any changes to remuneration or other terms of employment. Also there will be a 4 week trial period to make sure the role is suitable for them (employers often wish to increase this but 4 weeks is the statutory maximum trial period allowed in these circumstances).
• Although not strictly a legal requirement, if anyone feels the decision or the process that was followed by the company is unfair then most reasonable companies allow employees to appeal, and include details of how to do so in the notice of redundancy letter.

Individual Consultation Meetings following Collective consultation

Hopefully, during the consultation period some employees will be appointed into other roles.

For all others who it seems will be made redundant, an individual consultation meeting should be arranged before the consultation process closes and before any final decisions regarding redundancy are made.

Individuals should be invited to the meeting in writing. Please see the above guide for a model CIPD recommended letter.

The meeting should include:

• Reiterate the reasons for the redundancy situation.
• Explain what has happened in the process so far.
• Explain why their role has been selected for redundancy.
• Discuss / ask whether there are any alternative employment suggestions or other ideas to avoid redundancy?
• The timescales of what happens next, including when the consultation process will close.
• Whether they will need to: work all of their notice period; some will be Garden Leave; or some will be paid in lieu.
• Payments they will receive if they are made redundant.
• What further support will be available e.g. outplacement services. This will be covered in more detail in a later article.

In next week’s article we will look at the decision making process once the consultation process has closed, and giving notice of redundancy to all those whose roles will be made redundant.

If you would like to discuss the redundancy process, or any other HR matters, further please do not hesitate to contact us