Potential redundancies: must employer consult us?

[harper7]

Hi there

 

I find myself in a slightly unusual situation, which requires a slightly unusual question...

 

I am aware that an employer must consult employees and unions on proposed redundancies, but my question is slightly different:

 

If an employer proposes structural changes, that they admit may lead to redundancies, but only further down the line (say one or two years), after current funding runs out, are they obliged to consult on the proposed structural changes before they are implemented? If so, how long should that consultation be?

 

They will presumably have to consult in a year or two's time, if actual redundancies are proposed then, but it is the length and scope of any consultation on the structural changes that I am interested in now (in view of this creating possible redundancies later, which they admit may be necessary).

 

Thanks

[honeybee13]

Hello and welcome to CAG.

 

I hope some of our employment guys will be along with advice for you. The other place you could try is the ACAS website and helpline.

 

My best, HB

[elche]

Hi Harper,

 

If the structural changes do not lead to any type of dismissal or unilateral contractual variations which lead to a 'take it or leave it' type dismissal, then most probably no.

 

But, you could find the 'structural changes' lead to people being 'offered' new T & C's of employment and this can lead to a stand-off between the employer and the employee which can be viewed as a 'dismissal' if the employee refuses to sign. If this happened, if there had been no consultation at all prior to this, then this may well be unfair.

 

Of course good practice would be to consult from day one.

 

How many employees are affected by the change, and how many employees does your employer employ?

 

Che

Edited May 20, 2012 by elche

[harper7]

Thanks for your quick response.

 

To fill in as many of the blanks as I'm comfortable with: It's a big employer. Several are affected immediately by the structural changes, in terms of redeployment, though I'm sure there is nothing untoward there and the contract (and law) allows for the changes being proposed. That much I can check quite easily.

 

What I can't find out as easily yet, is whether a very brief consultation on the changes is long enough, given that the employer has now admitted that redundancies might need to be made (as a result), BUT not for one or two years. It doesn't sound right that they can avoid a statutory (90-day?) consultation period on the structural changes, by saying that the redundancies (which they admit there could be) will not be for a year or two.

 

It is my understanding that the unions would only have agreed to a very short consultation on the basis that no redundancies (or dismissals) would arise. Now that the employer admits that they may arise - as a result of the changes - but at a later date, it feels like the consultation on the changes itself should be the statutory (90 day?) one.

[elche]

It is my understanding that the unions would only have agreed to a very short consultation on the basis that no redundancies (or dismissals) would arise. Now that the employer admits that they may arise - as a result of the changes - but at a later date, it feels like the consultation on the changes itself should be the statutory (90 day?) one.

 

Is there a Union and are you in it? I ask because they should assist with this if you are, and also because there could be some collective agreement in place that relates to how and when and what should be consulted on.

 

However, assuming no collective agreement to to the contrary exists, then as a general principle, "...the obligation on the employer undertaking, under the Collective Redundancies Directive, to engage in consultation only arises once that decision has been taken, and not at the earlier point when that decision is merely proposed but has not yet been made, according to the opinion of Advocate General Mengozzi in USA v Nolan"

 

At the moment in the case of Nolan, we await full judgement of the ECJ, but it appears to me that, should they follow Advocates Generals preliminary opinion in the matter they well may hold that in domestic UK law the employer's obligation, "...to engage in consultation only arises once that decision has been taken, and not at the earlier point when that decision is merely proposed but has not yet been made..."

 

However, in a case where redundancies 'may' happen in 2 years time, I fail to see how some ongoing obligation to consult could not arise as in the next 2 years something may change which changes the rationale for the redundancies that exists now.

 

I personally think it would be hard, if not impossible, to defend a redundancy as fair where consultation had taken place 2 years prior to the dismissal.

 

But, it is difficult to be more definitive on the limited information available here, and on the basis that the the final decision in Nolan is not yet in yet.

 

Hope this is some help.

 

Che