In the view of the global economic recession, international employers should know their legal responsibilities in different countries. Alain-Christian Monkam examines the important differences between the laws on collective redundancies in France and the UK, focusing on when, who and what to consult, and for how long.
What is a collective redundancy?
In UK law, Section 195(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) provides that a collective redundancy is “for a reason not related to the individual concerned or for a number of reasons all of which are not so related”.
French law provides for a complex definition of redundancy: “a dismissal notified by the employer (1) for one or several reasons not related to the person of the employee, (2) resulting from the closure or the transformation of the place of work, or the modification refused by the employee of an essential element of the contract of employment, (3) relating to economic difficulties, technological mutations, a reorganisation to safeguard competitiveness, the closure of activities” (article 1233-3 of the Code of Labour).
When to consult
Under s.188(1) of TULR(C)A, an employer in the UK has a duty to consult where it proposes “to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less”.
In French law, the employer must follow one of the following two tests: (1) when the employer wants to dismiss fewer than 10 employees within a 30-day period (2) or when the employer wishes to dismiss 10 employees or more within a period of 30 days.
Whom to consult
In the UK, the employer must consult “the appropriate representatives of any affected employees”. Basically, these representatives are the independent trade union (recognised by the employer) that represents the affected employees. Where there is no such trade union, the employer shall consult the representatives appointed or elected by the affected employees.
The UK employer must also hold individual consultations with the employees selected for redundancies in order to discuss the selection criteria, the score applying to them, alternative employments and employees’ views and feedback.
In France, the scope and the content of the duty to consult depend on the number of employees in the company and the scale of redundancies.
The employer must hold individual consultations with the selected employees only, if the employer dismisses less than 10 employees (article 1233-11 of the Code of Labour) or if there is no employee representative in the company.
When the company has 11 employees and less than 50 employees, the employer has a duty to consult with the employee representatives, which is the “Comité Social et Economique” (CSE) (article 1233-8 of the Code of Labour).
In the special case where the company has 50 employees or more and it intends to dismiss 10 employees or more, the employer has to consult with (1) the trade union representatives, (2) the employee representatives and (3) the French administration.
What to consult about
In the UK, the consultation must relate to the ways of avoiding or reducing the dismissals and mitigating its consequences. The employer should disclose information under s.188(4) of TULR(C)A 1992, including the reasons of redundancies, the numbers and descriptions of the relevant employees, the selection criteria, the method of carrying out the dismissals, the method of calculating the redundancy payments, information relating to the agency workers.
In France, the employer must provide similar information i.e. the economic reasons of dismissals, the number of contract terminations expected, the selection criteria and pool for selection, the company headcount, the timetable of dismissals, the economic measures expected after the downsizing, the expected consequences on health, safety and work conditions (articles L. 1233-10 and 1233-31 of the Code of Labour).
Specifically, if the employer proposes to dismiss as redundant 10 employees or more:
- and if the company has fewer than 50 employees, it must also provide information on the measures to avoid or reduce the dismissals;
- or if the company has 50 employees or more, it should draft a “plan de sauvegarde de l’emploi” which set outs various measures to avoid or to reduce the redundancy dismissals: alternative employments inside or outside the company in the French territory, transfer of undertakings in order to avoid the company closure, creation of new activities, employees’ training, working time reduction (article L.1233-61 and L. 1233-62 of the Code of Labour).
Finally, when the company has 50 employees or more in France, the employer should hold an additional consultation on “the measures that might affect the volume and the structure of the workforce” (article L. 2312-8 of the Code of Labour).
How long to consult
In UK law, the consultation period should be 30 days minimum when the employer proposes to make redundant fewer than 100 employees; this period is extended to 45 days minimum when the collective redundancies relate to 100 employees or more. The employer must also notify the Secretary of State for Business.
In France, the timetable of the consultation depends on both the company headcount and the number of terminations expected. When the company intends to dismiss less than 10 employees, the employee representatives’ “Comité Social et Economique” must give its final opinion within 1 month from the first round of consultation meetings (article L. 1233-8 of the Code of Labour).
When the company considers to dismiss 10 employees or more and if it has less than 50 employees, the employee representatives must hold two consultations meeting separated by 14 days maximum (article L. 1233-29 of the Code of Labour).
When the company proposes to dismiss 10 employees or more and if it has 50 employees or more, the consultation period of the “Comité Social et Economique” is :
- two months if the number of redundancies are less than 100
- three months if less than 250
- four months above this limit.
These periods are increased by the time to negotiate with the trade unions (no limit) plus to consult with the French administration (15 to 21 days) plus to consult individually with the employees when required (five days minimum).