Collective Consultation Regulations 1999: Help or hindrance?

Practical Law UK Articles 4-101-0384 (Approx. 4 pages)

Collective Consultation Regulations 1999: Help or hindrance?

by David Dalgarno, McDermott, Will & Emery

Previous position

Employers were previously required to consult with employee representatives:

On collective redundancies where they proposed to make 20 or more people redundant at an establishment within a period of 90 days or less (section 188, Trade Union and Labour Relations (Consolidation) Act 1992)(TULR(C)A 1992).
On a TUPE transfer (a transfer under the Transfer of Undertaking (Protection of Employment) Regulations 1981 (TUPE)) (Regulation 10, TUPE).

These obligations were further amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 (1995 Regulations) which provided that consultation must take place with appropriate representatives who are either:

Elected employee representatives.
Representatives of the trade union (if the trade union is recognized by the employer) (section 188(1B) TULR(C)A 1992 and Regulation 10(2A), TUPE).

However, this legislative framework did not give any guidance on how employee representatives should be elected and what their functions and responsibilities would be nor how they would carry them out.

1999 Regulations

The 1999 Regulations amend the existing law and provide that:

Where an employer does recognise a trade union the employer must however consult with the union. Previously the employer could bypass the trade union and consult with elected employee representatives instead.
The employer has a choice as to whether it wishes to use an existing consultation mechanism rather than elect representatives. This would be appropriate where employee representatives have already been appointed or elected by the employees for a different purpose. The 1999 Regulations makes it clear that those representatives must, by their nature, have apparent authority from the employees to allow them to engaged in collective consultation. For example, employees appointed or elected for a charitable or social purpose would not be capable of being employee representatives.
Employee representatives must be elected or an appropriate existing mechanism be used and consultation must take place with and about, not just those employees who may be dismissed, but those employees who are affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals. The persons who can make applications to an employment tribunal for a protective award are also widened to include any of the affected employees.

Given that reorganisation usually follows redundancy or TUPE transfer it seems clear that a greater proportion, if not all of a workforce is likely to be "affected by measures taken in connection with those dismissals". Consequently the group of employees about whom consultation has to take place and from whom representatives have to be sought is much wider. This may have practical effects on how the consultation is structured.

The election of representatives is fair (see inset box "Election of employee representatives").
The penalty for a failing to consult for a TUPE transfer is increased from four weeks pay to up to 13 weeks pay and from 30 days pay to up to 90 days pay for collective redundancies of between 20 and 99 employees.
The existing protections which prevents employee representatives being subjected to a detriment or dismissed for carrying out their functions are clarified.
Employee representatives are also given the right to paid time off for training.
Where employees are slow or fail to elect employee representatives an employer may discharge its obligations to inform or consult by giving the information required by the legislation in writing.

Arguably this amendment was unnecessary because having given information in writing to all employees, that information has already been given to the employee representatives, since the employee representatives necessarily come from the employee group.

A comprehensive measure?

While the 1999 Regulations make it clear that it is the employer's responsibility to ensure that employee representatives are elected fairly, the functions of employee representatives are not addressed. This is more significant than it initially appears. For instance, the right to time off for training creates the expectation of training. However, it is not clear who does the training or what it entails.

It is also unclear as to whether an employee representative represents a general class or group of employees or the employees individually. If it is the former the employee representatives can be reactive in the consultative process with the employer taking on board what other employees chose to pass on. If it is the latter then it can be argued that it should be the function of the employee representatives to meet (or offer to meet) each employee who may be affected to enable each viewpoint to be put forward in the consultation meetings with the employer.

These approaches will take varying amounts of the employee representatives time and will have different consequences for the running of the employers' business. This issue becomes more important if the employer provides training for the employee representatives. The opportunity for disagreement at the outset of what is a difficult and delicate process is all too evident.

While the 1999 Regulations state that the employer is able to take the lead in deciding what kind of consultative arrangements are reasonable and appropriate in the circumstances, it is, after all, the employer's proposal that is the subject of the consultation and it is regrettable that legislators have missed the opportunity to clarify these points.

Employers need to consider the consequences of failing to get the acceptance of the employees and employee representatives to their favoured consultation process; if not the employees concerned may bring a claim for a protective award. The outcome is uncertain because there are no solutions contained in the legislation or case law. Common sense and compromise still seem far preferable for all concerned.

David Dalgarno, partner, McDermott Will & Emery.

Election of employee representatives

The 1999 Regulations amend section 188 (1B)(b)(ii) of the TULR(C)A 1992 and provide that:

An employer must make reasonably practical arrangements to ensure that the election is fair.
An employer must determine the number of representatives to be elected so that there are sufficient representatives to represent the interests of all the affected employees having regard to the number and classes of those employees.
An employer must determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees;
Before the election an employer must determine employee representatives' term of office so that it is of sufficient length to enable information to be given and consultations to be completed.
The candidates for election as employee representatives are affected employees on the date of the election.
No affected employee is unreasonably excluded from standing for election.
All affected employees on the date of the election are entitled to vote for employee representatives.
The employees may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, may vote for as many candidates as there are representatives to be elected to represent their particular class of employee.
So far as is reasonably practicable, the voting is secret and the votes are accurately counted.

Where one of the elected representatives ceases to act as an employee representative and any affected employees are no longer represented, another representative shall be elected in accordance with the above requirements.

Collective Consultation Regulations 1999: Help or hindrance? | Practical Law