Collective redundancy consultation, the appointment of representatives and notification to the Minister
Employee representatives and redunancy
These guidance notes explain what is meant by collective redundancy consultation and the statutory obligations of employers. JACS have created a booklet covering all redundancy matters including draft letters to assist with the process, to access the booklet please click here.
a) When is Collective Consultation required?
Where 12 or more employees are likely to be made redundant at one establishment within a period of 30 days or less there is a legal requirement to consult with representatives prior to initiating any individual consultation. Collective consultation is in addition to individual consultation, it does not replace it.
The consultation must begin at least 30 days before the first of the dismissals takes place. Notice can be given before the 30 day threshold is reached, providing that the Minister has already been notified (see i) below). However, if the employer intends to pay in lieu of notice the Minister must be notified at least 30 days prior to date on which the first employee leaves the organisation.
Even in circumstances where some of the redundancies are voluntary with only a few compulsory redundancies, the voluntary redundancies count towards the 12 employee trigger point for collective consultation.
b) Affected employees
An "affected employee" means any employee who may be affected by the proposed redundancy or who may be affected by measures taken in connection with such redundancy (excluding those employed on a fixed term contract of one year or less, unless the employee was previously employed under another fixed term contract of one year or less and the interval between the fixed term contracts was not more than 9 weeks). Affected employees are not just those who are made redundant but may include those employees who remain within the organisation.
c) Appropriate representatives
The appropriate representatives of affected employees are determined as follows:
1. Where affected employees are represented by a registered trade union, the appropriate representatives must be representatives of the trade union(s).
Or, where the affected employees are not represented by a registered and recognised trade union, either;
2. Employee representatives that already exist within the organisation who have been elected for other purposes, but who have authority from the affected employees to take on the role of collective redundancy representative,
3. Employee representatives that are elected specifically to take on the role of collective redundancy representative.
The group of collective redundancy representatives can include those who are representatives of a trade union and representatives as described in 2 or 3 above, so as to ensure that all affected employees are adequately represented.
d) How do employees go about electing representatives?
If it is necessary to elect representatives then the employer should ensure they are fairly elected and all affected employees should have an opportunity to stand for election and vote. The employer should:
- Ensure that the election is fair.
- Determine the number of representatives to be elected so that there are sufficient representatives to represent the interests of all the affected employees, having regard to the number and classes of those employees.
- Determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular groups of those employees.
- Determine the term of office as employee representatives so that it is of sufficient length to enable relevant information to be given and consultations to be completed.
- Ensure that the candidates for election as employee representatives are affected employees on the date of the election.
- Ensure no affected employee is unreasonably excluded from standing for election.
- Ensure all affected employees on the date of the election are entitled to vote for employee representatives (remember those employees who may be absent due to illness, maternity or paternity leave, annual leave or special leave).
- Ensure the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them; or, if there are to be representatives for particular classes of employees, for as many candidates as there are representatives to be elected to represent their particular class of employee.
- Ensure the election is conducted so as to ensure that so far as is reasonably practicable, those voting do so in secret, and the votes given at the election are accurately counted.
- Where a representative ceases to act in that capacity such that any affected employees are no longer represented, then another representative should be elected following the same process as is described above.
e) What information should they be given during the process?
To ensure that representatives play a constructive part in the consultation process, the consultation should include ways of;
a) Avoiding the dismissals
b) Reducing the number of employees to be dismissed
c) Mitigating the consequences of the dismissals
The employer is required to provide the representatives with written confirmation of;
- the reasons for the employer's proposals;
- the numbers and descriptions of employees it is proposed to dismiss as redundant;
- the total number of employees of any such description employed at the establishment in question;
- the proposed method in which employees will be selected for redundancy;
- how the dismissals are to be carried out, taking account of any agreed procedure, including the period over which the dismissals are to take effect ; and
- the method of calculating the amount of redundancy payments to be made to those who may be dismissed.
The information may be handed to local employee representatives or may be sent by post to an address notified to the employer, or in the case of a trade union, sent by post to the union at the address of its head or main office.
f) Facilities for representatives
The employer must allow the representatives access to the affected employees and must provide such accommodation and other facilities to the representatives as may be appropriate.
g) What if the employees fail to elect representatives?
Where affected employees fail to elect representatives, as long as they have been given a genuine opportunity to do so, the employer may fulfil its consultation obligations by consulting with affected employees directly and by giving each affected employee the information referred to above.
h) What if an employer fails to consult employee representatives?
Where an employer fails to comply with the collective consultation requirements then any of the appropriate representatives can make a complaint to the Jersey Employment Tribunal. If there are no appropriate representatives then individual employees can make a complaint.
If the Tribunal finds that the complaint is well-founded then it may make a protective award of up to 9 weeks' pay to each affected employee.
Such complaints must be presented to the Tribunal;
- before the date on which the last dismissal takes effect
- during the period of 8 weeks beginning with that date; or
- where the Tribunal is satisfied it was not reasonably practicable for the complaint to be made within the above time limits, within such further period as it considers reasonable.
- If a question arises as to;
- whether there were special circumstances which prevented the employer from complying with the collective consultation requirements, or
- whether the employer took all such steps towards compliance as were reasonably practicable in those circumstances, it is for the employer to show that there were such circumstances and that such steps were taken.
i) Notifying the Minister about proposals for redundancies
Where more than 12 employees are likely to be made redundant at one establishment within a period of 30 days or less, there is a legal requirement to give advance notice to the Social Security Minister.
This enables States Departments and related agencies to make early contact with employees who are facing redundancy to offer assistance and advice relation to job seeking, training, Social Security contributions and benefits.
The forms on which notice must be given to the Minister are available from the Social Security Department.
A copy of the notification must also be given to each of the representatives.