Redundancy Consultation: What Employers Must Do

Proper consultation is essential for fair redundancy. Understanding both collective and individual requirements helps you avoid costly claims.

Types of Consultation

Collective Consultation

Required when:

• 20+ employees at one establishment
• Proposed to be dismissed for redundancy
• Within 90 days or less

Consult with employee representatives.

Individual Consultation

Required for:

• Every individual facing redundancy
• Regardless of numbers
• Part of fair process

Collective Consultation Requirements

The Trigger

20+ redundancies at one establishment in 90 days:

• "Establishment" usually means single site
• "Redundancy" includes all dismissals not related to individual
• Count proposed, not actual, dismissals

Minimum Consultation Periods

Number of Redundancies	Minimum Period
20-99	30 days before first dismissal
100+	45 days before first dismissal
Under 20	No collective duty (but individual applies)

Who to Consult

Trade union: If recognised for the affected employees.

Employee representatives: If no union, must elect representatives.

Can use existing reps: If already elected for other purposes (e.g., works council).

Electing Representatives

If no union and no existing reps:

1. Decide how many representatives needed
2. All affected employees can stand and vote
3. Fair election process
4. Reasonable number considering workforce
5. Adequate access to employees
6. Reasonable facilities

Information to Provide (Section 188 Letter)

Must provide in writing:

1. Reasons for proposed redundancies
2. Numbers and descriptions of employees affected
3. Total employees at establishment
4. Proposed selection criteria
5. Proposed method of carrying out dismissals
6. Proposed method of calculating redundancy payments
7. Number of agency workers used

What Consultation Must Cover

Consult about ways of:

• Avoiding dismissals - Can redundancies be avoided?
• Reducing numbers - Can fewer people be affected?
• Mitigating consequences - Redeployment, support?

"In Good Time"

Consultation must begin:

• When redundancies are proposed
• While proposals are still formative
• Before final decisions are made

Not just going through the motions.

Genuine Consultation

Must be:

• Meaningful exchange of views
• Consider representations properly
• Respond to suggestions
• Open mind about outcome

Special Circumstances Defence

Reduced obligation only if:

• Special circumstances make compliance impractical
• You take all reasonably practicable steps
• Very limited defence - rarely succeeds

Individual Consultation

When Required

For every employee facing redundancy:

• Even if collective consultation applies
• Even if only one person affected
• Part of fair dismissal procedure

What Individual Consultation Covers

At minimum:

1. Warn of redundancy situation
2. Explain selection process and their position
3. Share selection criteria and scores
4. Allow them to challenge selection
5. Discuss alternative employment
6. Consider their representations
7. Offer right to be accompanied

Typical Process

Meeting 1 - At Risk:

• Explain situation
• Confirm they're at risk
• Explain process and timescales
• Invite questions

Meeting 2 - Provisional Selection:

• Share selection scores
• Explain how scored
• Invite challenge/representations
• Discuss alternatives

Meeting 3 - Confirmation:

• Consider any representations
• Confirm decision (if unchanged)
• Give notice
• Explain redundancy pay
• Right of appeal

Right to Be Accompanied

At any formal meeting:

• Trade union representative, or
• Work colleague

Must allow reasonable request.

Timing

No fixed minimum for individual consultation (unlike collective).

But must be meaningful:

• Enough time to consider
• Genuine opportunity to respond
• Not rushed through

Alternative Employment

Your Duty

Must consider suitable alternative employment:

• Within your organisation
• Associated companies
• Before and during consultation
• Genuine consideration

Suitable Alternatives

Consider:

• Similar work
• Similar terms
• Skills match
• Location
• Status

Offering Alternatives

• Inform employee of vacancy
• Give reasonable details
• Allow them to consider
• May need trial period

Unreasonable Refusal

If employee unreasonably refuses suitable alternative:

• May lose right to redundancy payment
• "Unreasonable" depends on circumstances

Common Consultation Mistakes

1. Starting Too Late

Problem: Decisions already made before consultation.

Solution: Consult when redundancy is proposed, not decided.

2. Going Through the Motions

Problem: No genuine consideration of representations.

Solution: Document how you considered and responded to feedback.

3. Rushing Individual Consultation

Problem: One meeting covering everything.

Solution: Multiple meetings, time to consider between.

4. Not Sharing Selection Scores

Problem: Employee can't challenge if they don't know scores.

Solution: Share scores and criteria at individual consultation.

5. Ignoring Alternatives

Problem: Not genuinely considering redeployment.

Solution: Active search for alternatives, documented.

6. Missing the Trigger for Collective

Problem: Not recognising 20+ threshold.

Solution: Count all proposed redundancies at establishment.

Protective Awards

What They Are

Compensation for failure to collectively consult.

Amount

Up to 90 days' pay per affected employee.

How Awarded

Tribunal considers:

• Seriousness of failure
• Employer's culpability
• Any mitigating factors

Claiming

• Claim within 3 months of last dismissal
• Union or employees can bring claim
• Each employee can claim

Unfair Dismissal

Procedural Unfairness

Individual consultation failures make dismissal unfair:

• Compensation for unfair dismissal
• Basic and compensatory awards
• Even if redundancy itself genuine

What Tribunal Considers

• Was there genuine redundancy?
• Was selection fair?
• Was there adequate consultation?
• Were alternatives considered?
• Did employer act reasonably?

Notifying the Government

Requirement

Must notify Secretary of State (HR1 form) if:

• 20+ redundancies at one establishment
• Within 90 days

Timing

Redundancies	Notice Period
20-99	30 days before first dismissal
100+	45 days before first dismissal

Failure to Notify

• Criminal offence
• Fine on summary conviction
• Doesn't affect consultation duty

Documentation

What to Keep

• Section 188 letter
• Consultation meeting notes
• Employee representatives' responses
• Individual consultation records
• Selection documents
• Alternative employment searches
• Final decision letters

Why It Matters

Evidence that:

• You consulted properly
• Considered representations
• Followed fair process
• Made reasonable decisions

Checklist

Collective Consultation

• Identify if 20+ threshold triggered
• Identify/elect employee representatives
• Calculate minimum consultation period
• Issue Section 188 letter with all required information
• Hold meaningful consultation meetings
• Consider and respond to representations
• Notify Secretary of State (HR1)
• Document throughout

Individual Consultation

• Warn employee of redundancy situation
• Explain selection process
• Share selection criteria and scores
• Allow challenge of selection
• Genuinely consider representations
• Search for alternative employment
• Offer right to be accompanied
• Hold multiple meetings
• Confirm decision with right of appeal
• Document everything