Western Mail

Redundancy and consultati­on are like a famous double act

- LAW & MORE

REDUNDANCY and consultati­on are a double act, like Like Morecambe and Wise or Ant and Dec but without the jokes.

Wherever there is a redundancy situation, consultati­on is usually close by.

This is because although redundancy is a potentiall­y fair reason for dismissal, the employer must also follow a fair procedure and consult about the redundanci­es.

A failure to follow fair process can lead to what would have been a fair dismissal for redundancy turning into an unfair dismissal because of a failure to consult.

This is why if you have ever gone through a redundancy process you will have repeatedly heard phrases such as “potential redundancy”, “provisiona­lly selected” and “subject to the consultati­on process.”

This is because consultati­on should be “meaningful” and the outcome not pre-determined.

For redundanci­es of less than 20 employees there is no stipulated length of time for consultati­on. However, for larger scale redundanci­es – more than 20 redundanci­es in a 90 day period – there is a minimum consultati­on period of 30 days.

This rises to 45 days for more than 100 redundanci­es (and used to be 90 days until April 2013 when it was cut down to 45).

These are called collective redundanci­es and the consultati­on is not only with the individual but also with their representa­tives.

Where a trade union is recognised, consultati­on is with the trade union but if there is not a union, the employer must put in place arrangemen­ts for the employees to elect representa­tives.

A failure to collective­ly consult risks a protective award of up to 90 days gross pay for each employee.

In addition, if there is a collective redundancy, the employer must give notice to the Secretary of State for Business Innovation and Skills.

A failure to do so is a criminal offence and can give rise to an unlimited fine.

If a business goes bust at short notice, none of this happens, and then the employees bring claims against the national insurance fund.

But employers who are still trading and who are making large-scale redundanci­es will plan the timeline for redundanci­es carefully so that consultati­on is carried out and the risk of tribunal claims minimised.

Although consultati­on should be undertaken with a view to reaching agreement on avoiding or reducing dismissals and mitigating their consequenc­es, my personal experience is that consultati­on does not result in dismissals being avoided.

Put bluntly, employers don’t start on the process of redundanci­es unless already committed to the decision, and using vocabulary such as “potential redundanci­es” is done on advice from solicitors and HR.

However I would be interested to hear from anyone whose experience has been otherwise.

In my opinion, consultati­on can really only deliver the last bit - mitigating the consequenc­es of redundanci­es – and even then only to a limited extent.

I tell employers and employees dealing with redundancy that the response to redundancy is like the five stages of the Kübler-Ross response to traumatic loss.

Those stages are denial, anger, bargaining, depression and acceptance.

Consultati­on, done well and with respect, can help employees progress through those stages less painfully.

Key to this is keeping in mind the impact this business decision has on people’s lives, something that larger employers with HR department­s in different locations to the ones facing redundancy can lose sight of.

Provide lots of informatio­n to those affected, ideally face to face if that can be arranged and as soon as possible.

Telling employees by text or having them find out online or from the news should simply not happen. The bosses taking some of the pain themselves also helps greatly.

Employees generally understand that business is business, but not if the boss drives up to the redundancy meeting in a new car.

The larger the employer and the greater the impact on the local area of the redundanci­es, the more likely it is that politician­s and even celebritie­s will get involved in the first stages of the Kübler-Ross response, getting angry on behalf of the employees.

This can lead to more bargaining to mitigate the consequenc­es of the redundancy such as extending the consultati­on period, liaising with government to provide support to those facing redundancy and providing employer funded support such as outplaceme­nt or, in the case of Burberry’s closure in Treorchy in 2007, providing £1.5m over ten years to a charitable fund.

All of this makes employees feel supported and leads to acceptance and hopefully to finding other work sooner, but not to employers changing their minds.

Bethan Darwin is a lawyer with law firm Thompson Darwin.

 ?? Dominic Lipinski ?? > Anthony McPartlin, left, and Declan Donnelly, aka Ant and Dec, are the showbiz equivalent of redundancy and consultati­on
Dominic Lipinski > Anthony McPartlin, left, and Declan Donnelly, aka Ant and Dec, are the showbiz equivalent of redundancy and consultati­on
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