A practical guide to electing employee representatives for consultation

In a recent seminar, we were asked for “top tips” on electing employee reps. This brief guide aims to help you with this process.

(Please note that this is not a substitute for legal advice, and you should seek specific assistance where required.)

1. When do I need to arrange elections for employee reps?

This will be required where you are either considering large-scale redundancies (at the time of writing, this means proposing to dismiss 20 or more staff at one establishment within a 90-day period) OR you are dealing with a Transfer of Undertakings.

Remember, though, that the law changed in July 2024 in respect of TUPE consultation, and if the transferor employs fewer than 50 employees, OR there are fewer than 10 employees affected by the transfer, and where there are no employee representatives in place, the transferor may inform and consult with the employees directly. (This micro exemption applies to TUPE only and is not relevant for collective consultation in redundancy programmes.)

If you do not have trade union representatives in place or there is no existing employee representative group to engage in collective consultation, you will have to allow affected employees to elect representatives.

The process for the election of employee representatives is the same in relation to both collective redundancies and business transfers.

2. So, when do we hold elections?

An employer must invite employees to elect representatives long enough before the time when the employer is required to give information to employees, thus allowing employees to elect their representatives by that time.

A long enough period should be allowed for employees to put themselves forward as candidates. It would be advisable for this to be at least seven days.

After that, at least seven days’ notice should be given of the ballot. The election could take place on a single day. You should allow for voting to take place in the workplace but also online/remotely where staff are not present.

3. How many employee representatives do we need?

It is up to the employer as to how many representatives are needed and whether all representatives can represent all employees, or whether representatives should be split to cover assigned groups or classes of employees.

Although the employer decides the number of representatives to be elected, you do need to ensure that there are sufficient numbers to adequately represent the interests of all the affected employees, having regard to the number and classes of those employees.

An employer will therefore often ask for a representative to cover each area of the business (i.e. one within each department, or more where a greater ratio demands it).

4. What is the process?

The initial communication should confirm that collective consultation will take place through elected representatives and should give an indication of the timescale for the process. Flint Bishop can assist with the notification wording.

Essentially, the employer will invite employees to put themselves forward as a representative if they wish to stand for election.

Although some employers ask that nominations be seconded by another colleague or ask employees to nominate someone rather than allowing staff to volunteer, this can cause issues and is more complicated than is usually necessary.

Note that if you get the right number of volunteers, then it may not be necessary to hold an election. Conversely, if you receive more volunteers than needed, you will need to organise a ballot to decide. Make sure that no one is excluded from volunteering.

5. What if we don’t get any volunteers?

In the rare event employees fail to elect representatives and/or you get no volunteers, then you must give each affected employee the information that you would have had to give to the representatives. You should keep evidence of why you have followed this route, and it is not an option unless you genuinely cannot appoint employee reps.

6. What else do we need to be aware of?

Employers need to be aware that appropriate representatives and others who participate in the election process have special legal protection. It will be automatically unfair to dismiss an employee representative if the principal reason for dismissal is related to the employee’s status as a representative. Employee representatives, candidates and employees who took part in an election also have a right not to suffer any detriment short of dismissal on the grounds of their status or activities.

Finally, employee representatives (and candidates) also have the right to paid time off work to carry out these functions.