It is going to be one of the sadder consequences of the Coronavirus pandemic that most employers are going to have to look closely at whether or not to make significant job cuts to their current headcount. Whilst some employers may view this as an opportunity to recruit and acquire staff, either generally or in particular areas, most employers are going to be looking at scheduling necessary headcount reductions.

Employers will be required to consider how collective consultation under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 will apply in the current circumstances. Similarly, other employers are likely to be looking at restructuring contracts of employment. If employers are introducing adverse changes and are even contemplating the prospect that staff who decline those adverse changes would be dismissed, this would also trigger an obligation to consult under section 188. The Government's recent announcement that the Furlough Scheme is to be progressively wound down from 1 August 2020 onwards may also trigger a need for some employers to go through a collective consultation process sooner rather than later.

This checklist highlights the practical steps that employers should consider when handling collective consultation during this challenging time, particularly when staff are working remotely. It should be read alongside our article, Life in the Time of Corona, Part 3: Handling Collective Consultation in the UK.

TO CONSULT OR NOT TO CONSULT?

  • The Coronavirus pandemic is unlikely to qualify as a "special circumstance" which would remove the need for collective consultation under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. You will still need to do whatever you can to comply with your collective consultation obligations, even if you are able to demonstrate that "special circumstances" had rendered full compliance impossible.

STATUTORY INFORMATION

  • You are obliged to consult with the employee representatives of affected employees and to provide certain statutory information to those representatives (this information includes the reasons for the proposals, the numbers and descriptions of employees proposed to be made redundant, and the proposed method of selecting the employees who may be dismissed).
  • You do not need to provide all of the statutory information to the representatives before collective consultation can start. However, even if you are unable to obtain some of the statutory information because of difficulties caused by the current working conditions, this does not excuse a lack of consultation. The statutory information to be provided should be delivered to the individual representatives or the recognised trade union. Alternatively, you can post the information to them.

ELECTIONS

  • If you do not have a recognised trade union in place for the relevant classes of employees at risk of redundancy, or a standing employee consultative committee, then it will be necessary to enable affected employees to elect employee representatives (however, there may be no need to hold any election if the number of candidates matches the number of representatives sought).
  • If a ballot is to be held then the ballot must be secret, but it is not necessary to have a ballot box with physical attendance to drop a ballot paper into it. You may make arrangements for a secret ballot to be conducted online.
  • You are obliged to ensure that there are sufficient representatives to represent the interests of the affected employees. You may well lean towards a smaller number of employee representatives where there will be conference calls or video calls. The larger the number of employee representatives, the more difficult it will be to ensure that any conference or video calls are effective.

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Originally published May 28, 2020.

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