With the current economic climate caused by Covid-19, collective redundancy exercises (i.e. where an employer is proposing to make 20 or more employees redundant within a period of 90 days) are looming. For many HR professionals, the idea of carrying out a collective redundancy is daunting, but careful advance planning can ensure that the process goes as smoothly as it can.
In this article we will be looking at one of the most time-consuming steps of a collective redundancy situation: electing employee representatives, to comply with sections 188 and 188A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA). This is done as part of the consultation process by which employers are required to inform and consult representatives of affected employees. It is important to note that “affected employees” may not just be those at risk of redundancy, but also those employees whose workloads will change as a result of the redundancies.
The first question to consider will be whether an election is actually necessary. It may not be necessary to hold and election where:
- There is a recognised trade union in respect of all affected employees. In this case, the trade union representatives will be the representatives for the purposes of consultation.
- There is a standing employee representative body (such as a works council). In this case, the employer may choose to inform and consult these representatives, or hold the election.
In both cases it is important to check that the mandate of the representatives cover all the affected employees, to ensure that they have authority to consult on those employees’ behalf.
If neither of the two cases above apply, then employers will have to organise an election, and take reasonable steps to ensure that such election is fair.
Number of representatives required
The first port of call for employers will be to decide how many representatives are required to ensure the interests of all affected employees are represented, and drawing up constituencies accordingly. The number of representatives must be “sufficient” for each constituency having regard to the number and classes of employees.
Part of that exercise will be to consider whether the affected employees are part of very different business units, in which case it may be appropriate to have representatives elected for a particular business unit, or whether it makes more sense to divide the affected employees according to other factors such as geographical sites, or seniority.
Employers may impose reasonable restrictions as to which employees can put themselves forward as candidates. For example, employers may want to exclude employees currently serving their notice period, or impose a minimum length of service (to ensure the potential representative is reasonably well informed as to the issues the workforce faces).
Beyond that, however, employers must ensure that they do not interfere with the nomination stage: case law has shown that where candidates are asked or nominated by management to stand, and no election is held as a result, that will be a breach of the employer’s duties under TULCRA.
In practical terms, there may be a reluctance on behalf of employees to put themselves forward, which may require HR involvement to explain the scope of the role, the level of commitment involved, and potentially extend the timeline for nominations if none are forthcoming.
All affected employees are entitled to vote for representatives according to their constituencies. The voting stage must take place in secret. In a situation where most employees are currently working from home, the easiest way to organise a ballot is to do so via a secure online platform. There are some external providers who can facilitate the election and create dedicated websites for this purpose.
Note that there may not be a need for a vote to take place in the event that an election is uncontested.
In order to ensure a smooth consultation process, it is often beneficial to arrange for the newly elected representatives to receive some training about collective redundancies and their role as part of the consultation. Again, there are many training providers out there who can deliver either “off-the-shelf” or tailored training sessions.
The work involved in arranging the election of employee representatives should not be underestimated, and employers should ensure that they allow sufficient time to go through the nomination and election process before the start of the consultation period. It is worth bearing in mind that should an employer fail to consult and a claim be brought before an employment tribunal, a protective award could be made of up to 90 days’ pay (uncapped) for each affected employee.
The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.
© Miller Rosenfalck LLP, 24 June 2020