Response to government consultation on holiday pay following the Supreme Court judgement
This article outlines key information relating to amendments to the law on holiday pay, TUPE and working time.Read more
The dismissal of an employee will be by reason of redundancy if it is “wholly or mainly attributable to” the employer:
For collective consultation, the definition of redundancy also includes circumstances which do not immediately appear to be redundancy, for example, where an employer changes employees’ terms and conditions of employment through termination and re-engagement.
The first step should be to establish whether there is a genuine redundancy situation:
Once you have established that there is a genuine redundancy situation, the next step is to consider the following points:
When you have established how many redundancies are being proposed, you will be in a position to assess whether it is proposed that 20 or more employees will be made redundant over a period of 90 days or less.
If so, there will be a duty under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to:
Inform and consult appropriate employee representatives (section 188, TULRCA). This may either be trade union representatives or elected employee representatives if you do not recognise a trade union.
Where 100 or more redundancies are proposed, consultation must begin at least 45 days before the first dismissal takes effect. For less than 100 redundancies, the consultation period is 30 days.
Notify the Secretary of State (in practice BEIS, on Form HR1) (section 193, TULRCA). Notification must be received by the Secretary of State at least 45 days before the first dismissal, where the employer proposes to dismiss 100 or more employees within a 90-day period.
Where less than 100 redundancies are proposed, the notification period is 30 days.
A tribunal may award up to 90 days’ gross pay in respect of each employee where there has been a breach of the information and consultation duty.
An employer may also be fined if it fails to notify the Secretary of State by submitting a HR1.
Whenever there is an obligation to consult collectively, the employer will also need to ensure that it has followed a fair procedure in relation to proposed redundancies, including consulting with individuals properly, so as to minimise claims for unfair dismissal.
There is a limited exception/defence to the obligation to collectively consult. The exception applies where there are “special circumstances which render it not reasonably practicable” for the employer to comply with the requirement. These are:
If you require assistance with the redundancy or collective consultation processes, or any other employment law matter, please call us on 01332 226 155 or complete the form below.
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