UK businesses are taking their first tentative steps in planning for returning to work once the current restrictions are lifted. They may be faced with making decisions which trigger collective consultation obligations including: proposed collective redundancies; changing terms and conditions via dismissal and re-engagement; health and safety issues; and proposed TUPE transfers.

When are collective consultation obligations triggered?

  • If an employer proposes to dismiss as redundant 20 or more employees at one establishment within 90 days or less, they must inform and consult with appropriate representatives of the affected employees.
  • If an employer proposes to dismiss and re-engage 20 or more employees at one establishment within 90 days or less, in order to implement achange to terms and conditions, they must inform and consult with appropriate representativesin the same way as for proposed collective redundancies.
  • In a TUPE transfer, both the old and new employers have an obligation to inform and, in most cases, consult with appropriate representatives of their own affected employees.
  • Employers also have a duty to inform and consult with employees or their representatives on health and safety matters. An employer must consult with health and safety representatives appointed by the trade union, if one is recognised. If not, employers must consult with health and safety representatives elected by the workforce or, if there are none, directly with employees.
  • If an employer employs at least 50 employees, there is an obligation to provide information and carry out consultation if proposing to make certain listed changes to pension schemes.

Electing employee representatives

If there are no trade union representatives and no standing body of representatives, then an employer must invite the affected employees to directly elect representatives. The legislation does not set down a specific timescale for an election. However, if an employer needs to elect employee representatives it will have to start early enough to enable the representatives to be elected by the time the information / consultation process is due to begin. For example, the 30 /45 days consultation required in a collective redundancy process cannot begin until after the representatives have been elected and provided with information about the proposals.

There are statutory rules governing the election of employee representatives (other than for health and safety representatives). The election process can be lengthy as it involves: identifying affected employees; notifying affected employees of proposals; planning a fair election process; deciding on the number of representatives needed and how long they will stand for; considering limits on who can be a candidate; notifying affected employees seeking nominations; confirming the candidates; planning voting arrangements; preparing ballot papers; holding the ballot; counting the votes; announcing the results and providing training for the elected representatives.

In an environment where it may be necessary to make decisions quickly, not going through this process ahead of the consultation obligations being triggered could be detrimental.

The pros and cons of electing a standing body of representatives

Instead of going through an election process only after there is a proposal, employers may decide to elect a standing body of representatives now. The standing body would then be ready to act as soon as they were required. The information and consultation exercises would then be able to start immediately when triggered, with the potentially lengthy election process having taken place in advance of any proposals being made.

Some employers might be reluctant to elect a standing body of employee representatives, however, as it would mean that employees would be aware of the potential consultation remit which is likely to include redundancies. A way around this would be to make it clear that the election is for general consultation purposes with redundancies being just one potential matter for consultation.

Another consideration for employers is that the authority of a standing body could be challenged - on the basis that it doesn't properly represent the affected employees. For example, at the time the standing body is elected, the employer may not accurately identify who the affected employees are and so in turn fail to elect representatives who sufficiently represent them.

Therefore, before electing a standing body of representatives, consider precisely what its remit would be. The constitution should make clear what purpose(s) the representatives have been elected for; and which employees they represent.

Additional information and consultation obligations

If an employer receives a valid request from employees under the Information and Consultation of Employees Regulations 2004 (ICE Regulations), they will have to enter into negotiations to establish a procedure for informing and consulting on key employment matters (unless there is a valid pre-existing agreement). Should negotiations fail, a fall-back procedure, as set out in the Regulations, will apply.

A valid request is one which is made by at least 2% of the employees in the undertaking (subject to a minimum of 15 and maximum of 2.500 employees). Prior to 6 April 2020, the threshold had been 10%. This change may mean that more businesses may be faced with this type of request.

If an employer decides to establish a standing body, they may wish to ensure that it meets the requirements of a"pre-existing agreement" under the ICE Regulations, to avoid having to have two information and consultation bodies.

More information

We don't know when or exactly how lockdown will be lifted, but clearly the pandemic has already caused significant disruption across many industries and it is likely that difficult decisions will need to be made. Please contact us for further information on electing standing bodies and collective consultation.

Workbox users can also find more information on the pages on Electing Employee Representatives; and Information and Consultation.