It is an unfortunate sign of the times that mass redundancies are on the increase. The rules on collective consultation are detailed and prescriptive. However, in broad terms, where the number of employees to be made redundant at an establishment in a 90-day period is more than 20, but less than 100, there must be consultation with employee representatives. This must start in good time before the redundancies and last at least 30 days. (Where more than 100 losses are planned at an establishment, the minimum period rises to 90 days). If the redundancies you propose are at multiple sites, the question of whether each individual site, the company as a whole, or some other sub-category represents a single establishment will come into play to determine whether you are caught by the legislation. The law on what amounts to an establishment is not entirely clear.
Some employers may treat different locations/branches as separate "establishments" for the purposes of the legislation. Under this approach, the number of proposed redundancies at each establishment may fall below the threshold to trigger the legislation. This is not without risk, however, and if there is any doubt, legal advice should be sought on the specific circumstances of your business.
If you recognise a union, then consultation will be with union representatives; otherwise, unless you have existing employee reps in place, you will have to invite an election. Broadly, the consultation should involve looking ways of reducing the numbers of employees to be dismissed, mitigating the consequences of the dismissals, and probably also the business reasons for the redundancies, at least if they arise from a site closure.
The announcement of redundancies in successive 'batches' will often be unavoidable for genuine business reasons, where there has been a further deterioration between the first and subsequent announcements. However, if employees suspect a strategy of staggering the redundancies in an attempt to avoid the consultation duty or the extended 90-day requirement, then you may be faced with claims. The awards can be up to 13 weeks' pay - a significant financial blow to an employer trying to cut costs. It is therefore important to maintain a robust paper trail to evidence at what stage each 'batch' of job cuts was proposed.
Ewan MacLeod is a partner specialising in litigation law with leading UK law firm Shepherd and Wedderburn LLP.
