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Marc Jones, partner at Turbervilles, gives advice on carrying out redundancy consultations

When is consultation required?

There are three situations where consultation is required:

• If between 20 and 99 employees are to be made redundant in one establishment within a 90-day period, the employer must consult with those employees' representative(s) at least 30 days before a decision is made
• If 100 or more employees are to be made redundant, the employer must consult with them at least 90 days before a decision is made
• Since 6 April 2005, an employer that intends to make 150 or more employees in one establishment redundant must adhere to the provisions of the Information and Consultation of Employees Regulations 2004 and inform and consult employee representatives:
• where there is a threat to employment in an undertaking
• with a view to reaching an agreement on decisions likely to lead to substantial changes in work organisation or in contractual relations.

There is no minimum statutory consultation period when making less than 20 employees redundant. However, each employee has a right to be genuinely consulted about redundancy proposals. Also from 1 October 2004 an employer must comply with the following statutory minimum provisions relating to dismissal:

• the employee must be invited to a meeting in writing
• the employer must hold a meeting and confirm any decision in writing
• the employer must provide a right of appeal against dismissal.

Consultation should begin as soon as reasonably practicable and before the final decision to dismiss those identified for redundancy. At all stages of the consultation process it should be fair and genuine and employees should have the opportunity to express their views and put forward proposals for avoiding redundancies and/or their dismissal.

What should consultation be about?

Once it becomes clear that redundancies may be necessary, the consultation process begins and the employer must consider ways of avoiding dismissals, to identify the number of employees to be dismissed and to reduce the consequences of dismissals. This includes:

• reducing overtime
• altering shift patterns
• layoff and short-time working
• alternative employment
• volunteers.

The affected employees and/or their representatives (if any) should be involved in this process and the employees will at that stage be put 'at risk' of redundancy. This should be confirmed in writing.

The aim is to give employees as much advance warning as possible to allow them to assess their position and, if necessary, look for alternative employment.

Should redundancies appear inevitable, employers should consult employees about the pool(s) for selection, the selection criteria that will be applied and the method of application, such as competitive interviews. Once this is completed, the process of selection can go ahead.

The selection criteria should be applied to the pool of employees in the manner agreed. If no agreement can be reached with the employee and/or their representatives, it will be for the employer to decide upon a fair and reasonable approach for the criteria to be used.

Further information

• The law relating to redundancy is generally found in the Employment Rights Act 1996 as amended and the Trade Union and Labour Relations (Consolidation) Act 1992
• The provisions of the Information and Consultation of Employees Regulations 2004

Marc Jones is a partner at Turbervilles