Weekly dilemma: Elections for employee representatives

Due to some highly adverse publicity about some of the practices at my business, I’ve decided to close it. This will probably mean redundancies for around 200 staff in a short space of time. Most of them work at one location, although there are some at smaller satellite offices. I’ve been told that I need to arrange an election for employee representatives, so I can consult them. What do I need to do?

The rules on redundancy are complicated and getting them wrong can result in severe financial consequences. The maximum sanction for a breach of the rules is an award of 90 days’ (uncapped) gross pay per affected employee. It is easy, therefore, to identify the adverse results of failing to follow a fair redundancy process. It is not always so easy for employers to ensure that they get things right.

Given that you are proposing to make redundancies on a large scale (20 or more people within a 90-day timeframe), then you must consult on the proposal with the affected employees’ representatives.

The “appropriate representatives” will be a recognised trade union or other suitable existing body. Where there is neither of these, you will have to look for representatives to be nominated and depending on the number put forward, arrange for elections.

There is no specific guidance as to how these elections should be carried out. However, there are a number of requirements that must be satisfied, which include ensuring that:

• votes can be cast secretly, and counted accurately;
  
• all candidates for the office of employee representative are themselves affected employees at the date of the election;
  
• all affected employees are given the right to vote;
  
• no affected employee is unreasonably refused from standing for election; and
  
• a sufficient number of representatives is determined to ensure that the interests of all the affected employees will be represented.

The most important thing for you to remember is that the election process must be fair. You should ensure that the process is as well-managed as possible, from preparing for the election to announcing the results. You should consider the following questions:

• What type of election process will be used?
  
• Will the vote be postal, via email or held in the workplace?
  
• Will the voters be divided into constituencies, according to geography or seniority, or will the entire workforce be treated as a single electorate?
  
• How many representatives will be elected? There must be a minimum of one representative for every 50 employees, up to a maximum of 25.
  
• How long will the representatives’ term of office last? There must be sufficient time to both provide relevant information and complete consultation.
  
• How long will the entire process take? Employees must be invited to elect representatives in sufficient time to begin consultation.

There are no right or wrong answers, provided that the approach taken is sensible and thought out.

Of course, affected employees may decline the opportunity to elect a representative. As long as they have genuinely been provided with the opportunity to do so, this need not necessarily present a problem. Where this is the case, you must make sure that all information is provided to the affected employees individually.

Laura Kearsley, associate, Weightmans LLP