Informing and consulting

I refer to the report of Junk v Kuhnel in Case Round-up (Employers’Law April). I believe the commentary is misleading, and would like to explain how DLA Piper’s HR group interprets the Junk judgment.

The position in UK law is that where an employer proposes to dismiss 20 or more employees at one establishment within a period of 90 days or less, consultation must begin at least 30 days before the first dismissal takes effect. Where the employer proposes to dismiss 100 or more employees, consultation must begin at least 90 days before.

The Employers’Law commentary on Junk states that employers should “ensure the consultation and notification period in collective redundancies has expired before serving any employees with notice of termination of employment”. This suggests employers must allow the full 30- or 90-day consultation period to expire before serving notice of termination. This interpretation is overly restrictive and unhelpful to employers.

DLA Piper’s view is that, post Junk, before notice of termination is served, employers must ensure collective consultation is complete and notification to the DTI has been given. Once consultation has been genuinely attempted and a stage reached where there are no outstanding issues, notice of termination can then be given. This may be during the 30- or 90-day statutory period where the consultation process is completed quickly.

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The effect of Junk is not to provide automatically for a minimum 30- or 90-day consultation period before dismissal notices can be issued.
From an employer’s perspective, this is important. Having to delay giving notice until the end of a full 30- or 90-day consultation period could lead to significant extra salary costs.

Sarah Hellewell,
Professional support lawyer, DLA Piper

Addleshaw Goddard responds: It is certainly important to clarify the Junk case judgment. If employers wish to serve notice before the end of the 30- or 90-day period, they need to be clear that the consultation process has run its course. If they give notice before this, they risk a protective award. We advise the employer to agree with the employee representatives or trade union that consultation has been completed before they give notice.