Do the collective consultation obligations apply in relation to staff who accept voluntary redundancy?
Yes. In Scotch Premier Meat Ltd v Burns and others  IRLR 639 EAT, the employer argued that employees who had accepted voluntary packages were not entitled to a protective award because they had not been dismissed in law.
The Employment Appeal Tribunal (EAT) in Scotland held that “where the whole background to the departure was determination by the employer to close a factory and make the employees inevitably redundant, the fact that some employees accepted a package as the means of effecting that decision does not in our opinion preclude a finding that there was a dismissal”.
The EAT agreed with the tribunal that the employer had called for volunteers in an attempt to avoid the duty to consult, and held that the terminations had not been mutually agreed.
Does an employee have the right to be accompanied at an ‘at risk’ meeting?
A Under the Employment Relations Act 1999, section 10, workers have the right to be accompanied by a trade union official or a fellow worker at a disciplinary or grievance hearing.
A ‘disciplinary hearing’ is defined as a hearing that could result in a formal warning, the taking of some other action – such as dismissal – or the confirmation of a warning or some other action taken.
The standard statutory dismissal and disciplinary procedure applies to most redundancies that the collective consultation requirements do not apply to.
The Employment Act 2002, schedule 2, part 4, provides that a meeting held under the statutory dispute resolution procedures is a ‘hearing’ for the purposes of the statutory right to be accompanied.
However, for the statutory right to be accompanied under the Employment Relations Act 1999, the meeting must not only be a hearing, but also a ‘disciplinary’ or ‘grievance’ hearing. It does not therefore automatically follow that an employee has the statutory right to be accompanied at a redundancy meeting held under the statutory dismissal and disciplinary procedure.
This interpretation is consistent with the EAT’s reasoning in Heathmill Multimedia ASP Ltd v Jones and Jones  IRLR 856 EAT. Jones and his brother were called to a meeting in December 2001, and given one month’s notice of dismissal.
An employment tribunal held that the reason for dismissal was redundancy, and that it had not therefore been appropriate to follow the disciplinary route in dealing with the matter. However, it held that the meeting had been a ‘disciplinary’ hearing within the meaning of the Employment Relations Act 1999, section 10.
On appeal, the company argued that the meeting had not been a disciplinary hearing. The EAT upheld the appeal, and said that when the meeting’s purpose is merely to inform an employee that they are to be dismissed by reason of redundancy, it is not a disciplinary hearing within the meaning of the Employment Relations Act 1999, since the action being taken is not disciplinary in nature.
If the reasoning outlined in Heathmill is correct, then an employee does not have the statutory right to be accompanied at a meeting held under the statutory dismissal and disciplinary procedure where the employer is contemplating dismissal on the grounds of redundancy.
There are, however, technical arguments that could be had about the correct interpretation of section 10, so the safest option is to allow employees to be accompanied at such meetings. This is also best practice, and helps to ensure a fair process.
Do the Information and Consultation of Employees Regulations 2004 have any impact on the duty to consult collectively?
The Information and Consultation of Employees Regulations 2004 apply to undertakings with 150 or more employees from 6 April 2005, those with 100 or more from 6 April 2007, and those with 50 or more from 6 April 2008.
Employers do not have to set up information and consultation arrangements under the regulations unless they receive a valid request from employees, or they wish to do so themselves.
As a general rule, the regulations will not affect an employer’s obligation to consult collectively under the Trade Union and Labour Relations (Consolidation) Act 1992.
However, the regulations make it clear that where employers are subject to the fallback information and consultation provisions, and are also obliged to inform and consult under the Trade Union and Labour Relations (Consolidation) Act 1992, they will be relieved of their obligation to inform and consult under the regulations.
In these circumstances, the employer will simply be required to inform the information and consultation representatives in writing that it will be consulting under the Trade Union and Labour Relations (Consolidation) Act 1992.
The DTI’s guidance on the regulations suggests that employers with a negotiated or pre-existing agreement may wish to include a similar provision in their agreement, so as to avoid being subject to different legal requirements to inform and consult about the same matter.