How to consult individually when making less than twenty employees redundant

In this week’s article we continue our explanation of each stage of the redundancy process. So far we have covered reviewing the business then putting a redundancy plan together, announcing the plan to all employees ‘affected’ by the proposal and some other important relevant points to consider such as the selection process for who should be made redundant from those at risk, and the differences between Individual and Group consultation.

The next stage is to consult with all affected employees regarding the proposed redundancy plan. We will cover this in two articles – today we will cover the process most often followed by SMEs, Individual consultation for a relatively small number of redundancies. Next week we’ll write about the Group consultation process that is normally used for more than around 8 redundancies for logistical reasons but is a legal requirement for 20 or more redundancies.

It is acceptable to consult individually for any number of redundancies less than twenty, although once you get above six or seven it gets a little time consuming, which is why we find that most organisations revert to Group consultation above that number.

For proposals to make less than 20 redundancies at one ‘establishment’ within any 90-day period there is no legal guidance as to how long the consultation process should last.

At 186hr we recommend a 15-day process as this has been shown to be fair both in terms of ACAS feedback, winning Tribunals and also feedback from employees who have been through the process.

Having said that, the process can be completed in as little as 7-10 days where needed and, whereas in general we would argue that doesn’t really give time for the required ‘meaningful’ consultation, there are occasions where it is appropriate.

The rest of this article will follow our recommended 15-day process but we have put together a framework for completing the process in a 7-10 day period.  If you feel that is more fitting for your business need please contact us to discuss it further.

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.

15 Day Individual Consultation Process

Within this process we recommend that, following the announcement meeting described in last week’s article https://186hr.co.uk/who-and-how-to-inform-employees-of-a-plan-to-make-redundancies/ there should be three consultation meetings, each approximately one week apart before making redundancy decisions.

Day 1 – First consultation meeting shortly after the announcement

As explained last week we recommend that the ‘at risk of redundancy’ letter is handed to all those whose roles are now at risk at the end of the announcement meeting. We would then start the first individual consultation meetings an hour or so afterwards. Please note there needs to be a break in between the two meetings, and the individual must be ‘invited’ to the consultation meeting in writing, which is one of the main purposes of the letter.

All three consultation meetings should be pre-planned, with the manager who is due to hold them given a briefing (and ideally some training in the process) on how to structure the meeting, that should include at least the following:

• We recommend you offer the individual the opportunity to be accompanied by a work colleague or a union official (if they are a member of a trade union) in consultation meetings. Clearly this may delay the start of the consultation process while arrangements are made. If the individual is vulnerable or disabled you may wish to expand this to a family member or carer. We would caution against allowing anyone else to accompany employees such as a solicitor or a friend who works in HR.
• Confirm that, as per the announcement and the letter the individual’s role is now at risk of redundancy.
• Explain why their specific role was chosen to be at risk of redundancy, and an explanation of which roles if any have been ‘slotted’ or ‘pooled’. Please see our previous blog for more details of Slotting and Pooling https://186hr.co.uk/analysing-post-lockdown-business-strategies-and-putting-a-redundancy-plan-together/
• The roles available under the new structure for the individual to apply for, hand out Job Descriptions and explain the application process they need to follow.
• In addition, make them aware of any other vacancies in the organisation they may wish to apply for. As a best practice measure you may wish to give staff whose roles are ‘at risk’ preference for these other vacancies over other employees or external candidates but that is your choice, not a legal requirement.
• An explanation of the Selection Process to be followed for the new roles (see the above link to last week’s article that includes guidelines regarding the Selection Process), and the opportunity for them to comment on or challenge it.
• If you have decided to use a matrix approach to decide who will be appointed / made redundant as recommended in the above article, explain the criteria and scoring system that will be used.
• Explain that individuals are entitled to be informed of their matrix scores in the assessed areas if they request this, although they are not entitled to be told other employee’s scores.
• Discuss voluntary redundancy if relevant.
• Explain that the purpose of the consultation process is to try and reduce or avoid the need for redundancies. Ask whether they have any alternative proposals to the company proposal.
• In addition, ask whether they have any suggestions they wish the company to consider that would avoid or reduce the need for redundancies e.g. any Suitable Alternative Employment.
• What happens next – clarify any alternative proposals they raised during the meeting that you will look into, any queries you will look into, and confirm details of the next consultation meeting.

Following this and each subsequent consultation meeting, although not a legal requirement we find it is a good idea, that is appreciated by those involved, to send round to all those at risk of redundancy a Q and A document covering the alternative proposals that were raised and the company response, along with all queries that were asked with the company’s answers. Clearly you would not include any confidential queries in this document, they should remain private.

Whereas ideally all individual redundancy consultation meetings should be held face to face, and this will hopefully soon be possible following the easing of lockdown, if logistical issues mean this is difficult it is acceptable for meetings to be held over the phone or via Skype, Zoom etc. with the details later confirmed in writing.

Day 7 – Second consultation meeting.

The second consultation meetings should be broadly similar to the first, with the following changes:

• Give details of any further vacancies that have become available in the company since the last consultation meeting.
• An update of where the company is up to in the selection process for the roles available that were discussed last time, if any.
• The company’s views / decision regarding any alternative proposals that have been raised so far along with asking whether the individual has any further proposals that they would like the company to consider now they have had a bit more time to think and reflect on the company proposal.
• Likewise, the company’s views / decision regarding any other suggestions that were put forward to avoid or reduce redundancies along with asking for any further suggestions the individual wishes to raise.
• An update on the answers to queries raised last time, and whether there are any new queries?
• When explaining what happens next, be clear that the meeting next week is the final consultation meeting that the company has planned so if there are any alternatives to redundancies they wish to raise they need to raise them at that meeting or before.

Again we would recommend a Q and A document is circulated amongst all ‘at risk’ employees following the second consultation meetings.

Day 14 – Third and final consultation meeting

Again, the third and final consultation meetings should be broadly similar to the first and second meetings, with the following changes:

• Explain when the consultation process will close (usually the close of business today) and that this is the final consultation meeting 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 wish to propose an alternative to the company’s plan, or other actions that may reduce redundancies e.g. if you feel there is Suitable Alternative Employment please do so by the close of the consultation process.
• Tomorrow(?) the company will review any alternative proposals, make decisions and inform you of those decisions. (please note that it is inadvisable to make a decision the same day as the final consultation meetings as that implies that the result was a foregone conclusion and already decided before the end of the consultation process, casting doubt as to whether it was ‘meaningful’).
• Explain that if the decision is redundancy you will receive a letter giving you notice of redundancy with full details of dates, payments that will be made etc.
• If, however, you are appointed into a new role you will receive a letter confirming this, including any changes to remuneration or other terms of employment and details of any trial period in the new role.
• If you feel the decision or the process followed has been unfair then you have the right to appeal against the outcome. Details of how to do so will be in your notice of redundancy letter.

In next week’s article we will look at the Group consultation process and then the following week we will cover the decision making process and giving notice of redundancy to all those whose roles will be made redundant, this would normally take place on day 15.

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