Two weeks ago we announced a need to make 15 positions redundant. We recognise a trade union for that area and have started collective consultation with them about the redundancies. Since then one of our major customers has significantly reduced their orders with us for the next 6 months. This has led to us identifying that we need to make a further 10 positions redundant in the next couple of weeks. Given that the numbers affected by this later redundancy are under 20 and we have already started collective consultation with the first batch of redundancies, are we safe to assume that we don’t have to carry out collective consultation. We don’t recognise a trade union for the area latterly affected?
As you have not yet made the 15 positions redundant, what you are proposing to do is dismiss a total of 25 employees as redundant within the next 90 days. This triggers an obligation on you to carry out statutory collective consultation. Statute provides that you must collectively consult on redundancy where you are proposing to dismiss 20 or more employees within a 90 day period. Although you have started collective consultation with the Trade Union for the first 15 proposed redundancies, because of the numbers involved this would not count as statutory collective consultation and so you will need to start statutory collective consultation for all 25 employees.
Statutory collective consultation requires you to start collective consultation with employee representatives about the proposed redundancies at least 30 days before the first dismissal, where the proposed number of dismissals are between 20 -99 employees. For more information on the collective consultation requirements, see our Guide to Collective Consultation on our website. You will also need to issue an HR1.
As you don’t recognise a Trade Union for the area where 10 redundancies are proposed, you will need to invite the employees in that area to elect representatives. Again, more detail can be found in our Guide to Collective Consultation. Statutory consultation would then take place with both the Trade Union representatives and the elected employee representatives.
Had the first batch of redundancies been 20 or more employees and you had commenced the statutory consultation, the situation would have been different. You would only have to look at the second batch and determine whether or not the numbers of that second batch were sufficient to trigger the statutory consultation provisions. If they did, then you would commence a new process of statutory consultation for that second batch but it would be separate from the first batch of redundancies.
The situation would also have been different if the first 15 positions had in fact been made redundant i.e. you were no longer proposing to make them redundant but had in fact done so. The danger here however is that the employees or the Trade Union could challenge whether in fact all 25 redundancies were in mind at the same time but were deliberately staggered to avoid entering into statutory consultation. It is for this reason it is important to be able to show that there has been a subsequent unexpected event triggering the need for further redundancies.