Powell+Collective+Consultation

8/12/2019 Powell+Collective+Consultation

1/29

Collective Redundancies:Information, Consultation and Protection

Giles Powell

Old Square Chambers

10-11 Bedford RowLondon, WC1R 4BU

T. 0 0 ! "# 0$00%. &ler's(oldsquare.&o.u'

W. www.oldsquare.&o.u'

1
http://www.oldsquare.co.uk/http://www.oldsquare.co.uk/


2/29

Colle&)*+e Redundan&*es nforma)*on, Consul)a)*on and ro)e&)*on

ROT%CT /% W R S

1. ST TUTOR2 B S S

1.1. The EU Directive !"# $re%lacin& '#"1( ) on Collective Redundancies was im%lementedin U* law + what is now ss.1!! - 1 ( of the Trade Union and a+our Relations$Consolidation) /ct 1 ( $0TU RC/ ).

1.(. The main relevant %rovisions of TU RC/ are as set out at /%%endi2 1.

. W3 T S R% U C2 5

(.1. The definition of redundanc for the %ur%ose of the ri&ht to a redundanc %a ment, unfairdismissal, etc is the familiar one contained in s.13 $1) of the Em%lo ment Ri&hts /ct 1 4$0ER/ ). 5or TU RC/ %ur%oses, however, there is another and si&nificantl wider

definition, ta6en in %art from the EU Directive. 7 s.1 #$1) of TU RC/ references todismissal as redundant are references to dismissal for a reason not related to theindividual concerned or for a number of reasons all of which are not so related . 7 s.1 #$(), where an em%lo ee is or is %ro%osed to +e dismissed, it shall +e %resumed, unless thecontrar is %roved, that he is or is %ro%osed to +e dismissed as redundant.

(.(. 8here an em%lo er sou&ht to im%ose new terms and conditions of em%lo ment, and,havin& failed to o+tain a&reement, dismissed the wor6force, intendin& to defend an unfairdismissal com%laints on the &round of 0some other su+stantial reason , it was held that forthe %ur%oses of the o+li&ation to inform and consult, the dismissals were + reason ofredundanc : GMB v Man Truck and Bus UK Limited [2000] IRLR 636 .

(.3. The Directive re9uires an em%lo er who contem%lates collective redundancies +oth to

consult with wor6ers re%resentatives $+e&innin& to do so in good time ) and to notif acom%etent %u+lic authorit ; and %roR1 is mainl used toena+le the de%artment to com%ile statistics.

(.?. Junk v Kuhne [200!] IRLR 3"0 #$%J& was a reference + the 7erlin /r+eits&ericht, andarises out of the ver different collective redundanc s stem in German . The EC@ held that0redundanc , for the %ur%ose of the Directive, means a declaration + the em%lo er of theintention to terminate the contract of em%lo ment $that is, the &ivin& of notice to terminate)rather than the actual termination of em%lo ment on e2%ir of the notice %eriod. This %ointwas e2%ressl a%%roved + the E/T in eicestershire Count Council v Unison A(==#BIR R (= where it was held that, a%%l in& Junk , construin& 0%ro%osin& to dismiss as0%ro%osin& to &ive notice of dismissal does not involve an strainin& of the lan&ua&e ofection 1!! $see also the decision of the Court of /%%eal on different %oints, A(==4B IR R!1=).

(.#. The o+li&ation to consult with em%lo ee re%resentatives, and to notif %u+lic authorities,arises %rior to an decision to terminate contracts of em%lo ment. /n em%lo er is notentitled to carr out collective redundancies +efore consultation and the notification

%rocedure, under the Directive, have +een com%leted. /rticle ( im%oses an o+li&ation to

2


3/29

ne&otiate, and the effectiveness of such an o+li&ation would +e com%romised if theem%lo er could terminate contracts of em%lo ment durin& the course of the %rocedure, oreven at the start of it. It follows that the su+stantive o+li&ations under the Directive to notifand then to allow at least 3= da s to ela%se, and to consult 0in &ood time with a view toreachin& a&reement, ie to ne&otiate, must have +een com%lied with +efore redundancdismissal notices are issued. This does not necessaril mean that the full consultation %eriod

re9uired + U* law must have run its course +efore notices are issued. >owever, tradeunions are li6el to e2%loit the decision + refusin&, until the end of that %eriod, to concedethat consultation has come to an end, and it ma also +e ar&ued that the Directive is notfull im%lemented + the %rovisions of TU RC/, since the define the re9uiredconsultation %eriods + reference to when the dismissals ta6e effect rather than from whenthe are &iven.

(.4. TU RC/ s 1 3 was amended with effect from 1 cto+er (==4 to re9uire notification to theecretar of tate at least 3= da s +efore redundanc notices are issued $rather than +eforethe ta6e effect). The DTI did not consider it necessar to amend the re9uirements as toinformation and consultation, as the were thou&ht not to +e inconsistent with Junk .

$. W3 T S S6 SS L 5

3.1. 5or this %ur%ose, the definition is the familiar one from s. # of the ER/. an collectiveredundanc e2ercises involve calls + the em%lo er for volunteers. If em%lo ees volunteerand are acce%ted, the will leave + mutual a&reement: et their de%arture will still count asdismissal for the %ur%ose of the o+li&ation to consult.

3.(. 8here the whole +ac6&round to the em%lo ees de%arture is the determination of theem%lo er to close a factor and ma6e all em%lo ees inevita+l redundant, the fact that someem%lo ees acce%ted a %ac6a&e as a means of effectin& that decision does not %reclude afindin& that the were dismissed. /ll em%lo ees, includin& the volunteers, were entitled toa %rotective award: 'c(tch )remier Meat Limited v Burns [2000] IRLR 6*" .

3.3. 7 s. #$1)$+) of ER/, the non-renewal of a limited term contract amounts to a dismissal. Itma seem odd that, where a fi2ed term has +een a&reed in advance, and dismissal willsim%l arise from its non-renewal, the em%lo er must still consult; et this is so: +UT vUniversit, (- .e/cast e [" 11] IRLR "0 .

3.?. In com%utin& the num+er of em%lo ees whom the em%lo er %ro%oses to dismiss, thetri+unal should include an whom the em%lo er ho%es to rede%lo , if o+


4/29

unit in question to be endowed with a management which can independently effectcollective redundancies.

?.(. In M'= v Re-u e +ssurance ) c [2002] IRLR 32* , the em%lo ees affected + redundancwere field sales staff of two insurance com%anies, all of whom wor6ed from $and wereassi&ned to) a +ranch office, each of which was an inde%endent cost centre with its own

+ranch mana&er who was line mana&er to the staff em%lo ed there. The ET held that,des%ite these facts, the esta+lishment at which the were em%lo ed was the entire field staffof the em%lo er in 9uestion. The E/T, while remar6in& that the view of the ET a%%eared toma6e &ood sense from the %oint of view of industrial relations, u%held the em%lo er sa%%eal. /t the %oint at which the em%lo er was %ro%osin& to ma6e redundancies, it had notreached the %oint at which it could +e said that more than (= would +e dismissed at an one

+ranch. This uncertaint did not the com%an in9uestion had three se%arate %roduction units in three se%arate locations in Greece: a unit forthe manufacture of writin& %a%er, %rintin& %a%er, mechanical %a%er, chi% +oard andaluminium sul%hate; a second unit for the manufacture of soft 6itchen %a%er, toilet %a%erand +a&s, and a third unit for the %rocessin& of soft %a%er. The com%an decided to closedown its first unit, dismissin& almost all of the wor6force of that unit. The 9uestion for theEC@ was whether such a %roduction unit came within the conce%t of 0esta+lishment for the

%ur%oses of the a%%lication of Directive !"# . The EC@ held that it did. The court heldthat 00esta+lishment in the conte2t of an underta6in&, ma consist of a distinct entit ,havin& a certain de&ree of %ermanence and sta+ilit , which is assi&ned to %erform one ormore &iven tas6s and which has a wor6force, technical means and a certain or&anisationalstructure allowin& for the accom%lishment of those tas6s . oreover, 0the entit in9uestion need not have an le&al autonom , nor need it have economic, financial,administrative or technolo&ical autonom in order to +e re&arded as an 0esta+lishment ./s %er R(ck-(n , the EC@ held that the unit in 9uestion need not +e endowed with amana&ement which can inde%endentl effect collective redundancies nor must there +e a&eo&ra%hical se%aration from the other units and facilities of the underta6in&. In res%ect of

the facts of the %articular case, the EC@ noted that the unit in 9uestion had distincte9ui%ment and a s%ecialised wor6force, its o%eration was not affected + that of the otherunits, it had a chief %roduction officer who ensured that the wor6 was carried out %ro%erland su%ervised the entire o%eration of the units installations and ensured that technical9uestions were solved. The EC@ noted that 0Those factors clearl &ive such a unit an air of0esta+lishment for %ur%ose of ... the Directive......The fact that decisions concernin& theo%eratin& e2%enditure of each of those units, the %urchase of materials and the costin& of

%roducts are ta6en at the com%an s head9uarters, where a


5/29

#.(. The EU Directive a%%lies $as did the %revious version of it) where an employer iscontemplating collective redundancies 1 There has +een much de+ate on the distinction

+etween 0contem%latin& and 0%ro%osin& .

#.3. In R v British %(a %(r (rati(n and '5'TI e? arte @ard, [" 3] IRLR "0* , theDivisional Court said $o+iter) In my view, the difference between the wording of the

!ollective "edundancies# $irective and the wording of s. %&& of the 'ct of %(() is suchthat the section cannot be interpreted as having the same meaning as the !ollective

"edundancies# $irective..the verb proposes in its ordinary usage relates to a state of mind which is much more certain and further along the decision*making processthan the verb contemplate+, in other words the !ollective "edundancies# $irectiveenvisages consultation at an early stage when the employer is first envisaging the

possibility that he may have to make employees redundant. .%&& applies when he hasdecided that, whether because he has to close a plant or for some other reason, it is hisintention, however reluctant, to make employees redundant $%er Glidewell @). TheDivisional Court s readin& of the Directive in @ard, is su%%orted + the


6/29

consultations over closures leadin& to redundancies. The E/T considered that it did not.The E/T held $%er Elias @) that 0in a closure conte2t where it is reco&nised that dismissalswill inevita+l , or almost inevita+l , result from the closure, dismissals are %ro%osed at the

%oint when the closure is %ro%osed. The difference +etween %ro%osed and contem%latedwill still im%act on the %oint at which the dut to consult arises F it will not +e when theclosure is mooted as a %ossi+ilit +ut onl when it is fi2ed as a clear, al+eit %rovisional,

intention. 7ut the o+li&ation to consult over avoidin& the %ro%osed redundancies inevita+linvolves en&a&in& with the reasons for the dismissals , and that in turn re9uires consultationover the reasons for the closure. trictl , of course, it is the %ro%osed dismissals that are thesu+


7/29

4.1. In Midd es;r(u h B(r(u h %(unci v TG8U [2002] IRLR 332 , the senior officers of theCouncil were faced with a +ud&et deficit, and decided that redundancies were necessar . /decision was made to reduce num+ers in a %articular de%artment. The Union was informed,consultation meetin&s were held, and a meetin& of the Council a%%roved a %lan forredundancies. The com%laint of +reach of s.1!! was u%held: the o+li&ations under s.1!! toconsult a+out wa s of $a) avoidin& dismissals $+) reducin& the num+er of em%lo ees to +e

dismissed and $c) miti&atin& the conse9uences of dismissal, are dis


8/29

4.#. The Information and Consultation of Em%lo ees Re&ulations (==? $0ICE ) $im%lementin&the EU Directive on Information and Consultation (==("1?) define ( 0consultation as thee change of views and establishment of a dialogue between the em%lo er andre%resentatives or em%lo ees, and $su+


9/29


10/29


11/29


12/29

other circumstances of the case. Those circumstances would have to be considered in thelight of the duties and responsibilities of the administrator. ' combination of thosecircumstances and the e istence of an administration order may well give rise to specialcircumstances within section ((/&0 when neither would when taken in isolation.

'.1=. This case ma6es it clear that an em%lo er +ein& in administration or +ein& insolvent is not

%er se a s%ecial circumstance.

'.11. In Midd es;r(u h B(r(u h %(unci v TG8U [2002] IRLR 332 #$+T 0, an ar&ument thatthe serious financial difficulties faced + iddles+rou&h 7orou&h Council constitutedspecial circumstances failed. The Council had consulted in relation to wa s of reducin&the num+ers of em%lo ees to +e dismissed and miti&atin& the conse9uences of thedismissals, +ut not a+out avoidin& the dismissals. The E/T held that it was not %ossi+le toconceive of circumstances which could +e said to +e s%ecial, renderin& it not reasona+l

%ractica+le to enter into &enuine consultation on avoidin& redundancies as re9uired +section 1!!$()$a) +ut had sufficient time to consult and did &enuine consult on the mattersdetailed section 1!!$()$+) and $c).

'.1(. In M'= v Re-u e +ssurance ) c [2003] IRLR 266 , the em%lo er ar&ued +efore the ET thatthe re9uirements of secrec im%osed + the ta6eover code $to which the mer&er in 9uestionwas su+


13/29

n (3 @anuar (==?, there was another meetin& with the union at which it was e2%lainedthat the com%an was insolvent and had filed for administration. /n administration orderwas made on (4 @anuar , at which sta&e it was antici%ated that there was still si2 to ei&htwee6s worth of +usiness on the +oo6s and that continued tradin& would allow an orderlrun-down and &ive an o%%ortunit for investi&atin& a sale of the +usiness as a &oin&

concern. >owever, on 1 5e+ruar , the administrators were notified that the orders from thesurvivin& customer were +ein& withdrawn com%letel . /n further tradin& + the com%anwas therefore im%ossi+le and %roduction would have to cease immediatel . n thefollowin& da , the em%lo ees were informed that their em%lo ment was +ein& terminatedforthwith.

The union alle&ed that s1!! had not +een com%lied with. The em%lo er conceded that the %ro%osal to ma6e redundancies had +een on 1 5e+ruar and that there had +een noconsultation after that.

The em%lo er did not ar&ue that there had +een s%ecial circumstances under s.1!!$') and sothe issue was the amount of the %rotective award. >owever, the E/T $%er 7urton @)o+served that: It may well be that where it was established that consultation was futile, inthe sense of a case in which there was simply no time for consultation to be operated at all,then such defence may be available. ... -e mention it only because it may well be that thatis the area in which questions of futility are best addressed.

'.1#. Let in Ir(n and 'tee Trades %(n-ederati(n v +'8 ( din s ) c #in administrativereceivershi & UK$+T:06 *:0*:4M [200!] + $R #4& "9* #5ct& t he E/T acce%ted anar&ument, +ased on the decision of the Court of /%%eal in 'usie Radin v GBM [200*]

IRLR *00 and the E/T in Midd es;r(u h B% v TG8U [2002] IRLR 332> that it wassettled law that the futilit of consultation does not amount to s%ecial circumstances.

'.14. In UK %(a Minin v .UM [2001] IRLR * #$+T&, the em%lo ers tried to ar&ue that thefloodin& of the mine had created an unforeseen event which ou&ht to +e treated as relievin&

the em%lo ers of the dut to consult. The tri+unal &ave this ar&ument short shrift, +oth +ecause of the lac6 of evidence su%%ortin& this and +ecause in an event there had +een afailure to ta6e such ste% towards com%liance as were reasona+l %ractica+le. The decisionof the ET was u%held + the E/T.

'.1'. n (1 @anuar (== the E/T heard the a%%eal in U'+ v .( an . /n ET found that the UDe%artment for Defence had acted in +reach of s.1!! + failin& to consult with the localcivilian wor6force +efore decidin& to close an /merican arm +ase in >am%shire. It wasar&ued that such consultation in such circumstances would +e futile. The


14/29

the E/T &ave an illustration. / com%an in &rave financial difficulties &ives notice to theUnion. Consultation +e&ins. / lar&e new order comes in. The need for redundancies isavoided. Consultation ceases. / ear later the new order has +een filled, and there isnothin& to re%lace it. /t this %oint the %oint a fresh s.1!! consultation round is re9uired.The ori&inal notice is s%ent.

!.(. >owever, in @au?ha itself the facts were different. In @anuar (==3 notice was &iven tothe ecretar of tate and the Union of ?== %ro%osed redundancies of em%lo ees on 1(month fi2ed term contracts, to ta6e effect +etween /%ril and e%tem+er that ear.Consultation too6 %lace. The contracts were e2tended and no redundancies too6 %lace in(==3. In arch (==?, at the re9uest of the em%lo er, the DTI e2tended the life of the noticeto the ecretar of tate for Trade and Industr . The Union was not informed. In e%tem+er(==? the em%lo er issued a fresh notice to the ecretar of tate. In +reach of s. 1 3, noco% of it was sent to the Union. In cto+er (==? the %arent com%an announced furtherlar&e redundancies. 7 this time there were ?4 tem%orar em%lo ees left, and the weredismissed in Jovem+er. The E/T reversed the tri+unal s findin& that the ori&inal noticeand consultation was s%ent, so that there should +e a %rotective award. There was anon&oin& dialo&ue a+out the status and transfer of the tem%orar wor6ers, and the e2tensionof their contracts, from when notice was first &iven to when the last ones were dismissed. Itcontinued seamlessl . The elastic did not break . The tri+unal had +een wron& to focus onthe second notice to the ecretar of tate. The re9uirements of s.1 3 are se%arate fromthose under s.1!!.

#. W3 T : T3%R% S O U O 5

.1. If the em%lo er does not reco&nise a union, and no em%lo ee re%resentatives are in %ostalread , there is an o+li&ation on the em%lo er to %romote the election of em%lo eere%resentatives so that there ma +e consultation with them, or, failin& that, to inform andconsult with individual em%lo ees: (/ard v Mi rise Limited and 'G )rinters [200!]

IRLR 1* $a TUPE consultation case).

10. W3 T %R O S3OUL B% CO/%R% B2 T3% ROT%CT /% W R 5

1=.1. 8here a tri+unal finds a com%laint to +e well-founded it is re9uired to ma6e a declarationto that effect, and ma also ma6e a %rotective award. 1= If it decides to ma6e an award, itmust identif the 0%rotected %eriod , which $a) +e&ins with the earlier of $i) the date onwhich the first of the relevant redundanc dismissals ta6es effect and $ii) the date of theaward; and $+) must +e of such len&th as the tri+unal determines to +e


15/29

%ro%ortion of a wee6 s %a for %art of the %rotected %eriod of less than one wee6. 13 5or this %ur%ose, the usual statutor rules a%%l for the determination of a wee6 s %a 1? , +ut theamount is not limited to the statutor ma2imum.

1=.3. The tri+unal has discretion to decide whether or not to ma6e a %rotective award, and, if itdecides to do so, how lon& it considers it owever, it had lon& +een said + the E/T thatthe %rotective award was nevertheless com%ensator rather than %enal in character 14: the

+enefit for which em%lo ees were to +e com%ensated was not merel their %a durin& theconsultation %eriod, +ut more &enerall their ri&ht to +e the su+


16/29

re9uired information and to consult. The deli+erateness of the failure ma +e relevant, asma the availa+ilit to the em%lo er of le&al advice on the o+li&ations to inform andconsult. >ow it assesses the len&th of the %rotected %eriod is a matter for the tri+unal, +utthe %ro%er a%%roach in a case in which there has +een no consultation is to start with thema2imum %eriod and reduce it, onl if there are miti&atin& circumstances ?7@ [5$$0]

All 8! &*( 115 & an(( Smith v 6herry "e/is "imited [5$$:] !"! 0; &8AT(

16


17/29

1=.1=. The Recou%ment Re&ulations 3= a%%l to %a ments made under a %rotective award.8here a tri+unal ma6es a %rotective award, the em%lo er is o+li&ed to %rovide to theDe%artment of 8or6 and Pensions %articulars of the names, addresses etc. and dates oftermination of em%lo ment of the em%lo ees to whom it a%%lies. 31 The amount su+


18/29

$+) in res%ect of whose dismissal or %ro%osed dismissal the em%lo er has failed to com%lwith the re9uirement of s.1!!.

1(.3. It is necessar for the tri+unal to ma6e a clear findin& of fact as to the descri%tion$s) ofem%lo ees in res%ect of whom the %rotective award is to +e made, and for the descri%tion$s)to +e set out clearl in the


19/29

em%lo ees: for unfair dismissal, redundanc %a ments, etc. In such cases, the


20/29

award must still +e in res%ect of a descri%tion of em%lo ees, rather than a list of names. If atrade union a%%lies for a %rotective award, the tri+unal cannot, on that a%%lication, ma6e anaward in favour of em%lo ees other than those in res%ect of whom the union wasreco&nised, even if the individuals were mem+ers of the union ?3 $althou&h there would +enothin& to %revent the union from includin& two claims in its a%%lications, one on +ehalf ofthose in res%ect of whom it was reco&nised and another as re%resentative in the %roceedin&s

of union mem+ers in res%ect of whom it was not reco&nised, +ut who were also affectedem%lo ees).

The %rotected %eriod

1(.1(. The %rotective award orders the em%lo er 0 to pay remuneration for the protected period ?? , which +e&ins with the earlier of $i) the date on which the first of the dismissalsta6es effect and $ii) the date of the award ?# , +ut shall not e2ceed = da s. The


21/29


22/29

13. . /s with s.1!!$'), Re&ulation 13$ ) allows em%lo ers, where full com%liance is notreasona+l %ractica+le, merel to ta6e such ste%s as are 0reasona+l %ractica+le in thecircumstances . The second %art of s.1!!$') is re%licated in Re&ulation 1#$4). In addition,Re&ulation 13$1() e2%ressl states in relation to all duties im%osed + Re&ulation 13, that theduties a%%l irres%ective of whether the decision resultin& in the relevant transfer is ta6en +the em%lo er or a %erson controllin& the em%lo er.

5ailure to inform or consult

13.1=. 8here there has +een a failure to inform or consult, TUPE contains similar %rovisions tothose found in TU RC/ in terms of the ma6in& of a declaration and an order for a %rotectiveaward.

13.11. Under +oth s.1! $() and Re&ulations 1#$') and $!), an em%lo ment tri+unal ma ma6e adeclaration that there has +een a failure to consult a%%ro%riatel . .1! $3) and $?) %rovide fora %rotective award to +e made in res%ect of one or more descri%tions of em%lo ees. The

%rotective award is remuneration for the %rotected %eriod. The %rotected %eriod +e&ins withthe earlier of the date on which the first of the dismissals ta6es effect or the date of the award,is of such len&th as the tri+unal determines to +e


23/29

or &rou% underta6in&s situated in different em+er tates $Para&ra%h1 of the /nne2 to EUDirective ?"?#"EC, Para&ra%h 4 of the chedule to I 1 "33(3).

1?.#. Para&ra%h ' of the chedule to I 1 "33(3 %rovides for there to +e annual meetin&s.>owever this is su+owever, %ara&ra%h !$?) further %rovides that0The e2ce%tional information and consultation meetin& referred to in su+-%ara&ra%h $1) ofthis %ara&ra%h shall not affect the %rero&atives of the central mana&ement .

:iles 5owell ;ld quare !hambers

)< ;ctober )


24/29

??end*@ 1

%@)ra&)s from TULRC

s. %&& /%08 -here an employer is proposing to dismiss as redundant )< or more employees at oneestablishment within a period of (< days or less, the employer shall consult about the dismissals all

persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.

s. %&& /%'08 The consultation shall begin in good time and in any event*

/a0 where the employer is proposing to dismiss %08 ?or the purposes of this section, the appropriate representatives of any affected employeesare*

/a0 if the employees are of a description in respect of which an independent trade union isrecognised, representatives of that trade union, or /b0 in any other case, whichever of the following employee representatives the employer chooses8*

/i0 employee representatives appointed or elected by the affected employees otherwise than for the purposes of this section, who /having regard to the purposes for and the method bywhich they were appointed or elected0 have authority from those employees to receiveinformation and to be consulted about the proposed dismissals on their behalf+/ii0 employee representatives elected by the affected employees, for the purpose of this

section, in an election satisfying the requirements of section %&&' /%0.

s. %&& /)08 The consultation shall include consultation about ways of*

/a0 avoiding the dismissals,/b0 reducing the numbers of employees to be dismissed, and

/c0 mitigating the consequences of the dismissals,

and shall be undertaken by the employer with a view to reaching agreement with the appropriaterepresentatives.

s. %&& /=08 In determining how many employees an employer is proposing to dismiss as redundant noaccount shall be taken of employees in respect of whose proposed dismissals consultation has alreadybegun.

s. %&& /708 ?or the purposes of the consultation the employer shall disclose in writing to theappropriate representatives*

/a0 the reasons for his proposals,/b0 the numbers and descriptions of employees whom it is proposed to dismiss as redundant,

/c0 the total number of employees of any such description employed by the employer at theestablishment in question,/d0 the proposed method of selecting the employees who may be dismissed,/e0 the proposed method of carrying out the dismissals,, with due regard to any agreed procedure,including the period over which any dismissals are to take effect, and/f0 the proposed method of calculating the amount of any redundancy payments to be made/otherwise than in compliance with an obligation imposed by or by virtue of any enactment0 toemployees who may be dismissed.

24


25/29

s. %&& /@08 That information shall be given to each of the appropriate representatives by beingdelivered to them, or sent by post to an address notified by them to the employer, or in the case ofrepresentatives of a trade union sent by post to the union at the address of its head or main office.

s. %&& /A08 If in any case there are special circumstances which render it not reasonably practicable forthe employer to comply with a requirement of subsection /%'0, /)0 or /70, the employer shall take all

such steps towards compliance with that requirement as are reasonably practicable in thosecircumstances.

-here the decision leading to the proposed dismissals is that of a person controlling the employer/directly or indirectly0 a failure on the part of that person to provide information to the employer shallnot constitute special circumstances..

s. %&( /%08 -here an employer has failed to comply with a requirement of section %&& or section %&&',a complaint may be presented to an employment tribunal on that ground. deals with identity of partywho may complain#

. %&( /)08 If the tribunal finds the complaint well founded it shall make a declaration to that effect andmay also make a protective award.

. %&( /=08 ' protective award is an award in respect of one or more descriptions of employees B

/a0 who have been dismissed as redundant, or who it is proposed to dismiss as redundant, and/b0 in respect of whose dismissal or proposed dismissal the employer has failed to comply with therequirement of section %&&,

ordering the employer to pay remuneration for the protected period.

. %&(/70 The protected period B

/a0 begins with the date on which the first of the dismissals to which the complaint relates takeseffect, or the date of the award, whichever is the earlier, and/b0 is of such length as the tribunal determines to be 2ust and equitable in all the circumstanceshaving regard to the seriousness of the employer1s default in complying with the requirement of

section %&&+

but shall not e ceed (< days.

25


26/29

??end*@

%@)ra&)s from TU %

%= $uty to inform and consult representatives

/%0 In this regulation and regulations %7 and %@ references to affected employees, in relation to arelevant transfer, are to any employees of the transferor or the transferee /whether or notassigned to the organised grouping of resources or employees that is the sub2ect of a relevanttransfer0 who may be affected by the transfer or may be affected by measures taken in connectionwith it+ and references to the employer shall be construed accordingly.

/)0 4ong enough before a relevant transfer to enable the employer of any affected employees to consultthe appropriate representatives of any affected employees, the employer shall inform thoserepresentatives of *

/a0 the fact that the transfer is to take place, the date or proposed date of the transfer and thereasons for it+/b0 the legal, economic and social implications of the transfer for any affected employees+

/c0 the measures which he envisages he will, in connection with the transfer, take in relationto any affected employees or, if he envisages that no measures will be so taken, that fact+ and /d0 if the employer is the transferor, the measures, in connection with the transfer, which heenvisages the transferee will take in relation to any affected employees who will becomeemployees of the transferee after the transfer by virtue of regulation 7 or, if he envisages thatno measures will be so taken, that fact.

/=0 ?or the purposes of this regulation the appropriate representatives of any affected employees are *

/a0 if the employees are of a description in respect of which an independent trade union isrecognised by their employer, representatives of the trade union+ or /b0 in any other case, whichever of the following employee representatives the employerchoosesC /i0 employee representatives appointed or elected by the affected employees otherwise than

for the purposes of this regulation, who /having regard to the purposes for, and the method bywhich they were appointed or elected0 have authority from those employees to receiveinformation and to be consulted about the transfer on their behalf+/ii0 employee representatives elected by any affected employees, for the purposes of thisregulation, in an election satisfying the requirements of regulation %7/%0.

/70 The transferee shall give the transferor such information at such a time as will enable the transferorto perform the duty imposed on him by virtue of paragraph /)0/d0.

/@0 The information which is to be given to the appropriate representatives shall be given to each ofthem by being delivered to them, or sent by post to an address notified by them to the employer, or /inthe case of representatives of a trade union0 sent by post to the trade union at the address of its head ormain office.

/D0 'n employer of an affected employee who envisages that he will take measures in relation to anaffected employee, in connection with the relevant transfer, shall consult the appropriaterepresentatives of that employee with a view to seeking their agreement to the intended measures.

/A0 In the course of those consultations the employer shallC

/a0 consider any representations made by the appropriate representatives+ and /b0 reply to those representations and, if he re2ects any of those representations, state hisreasons.

26


27/29

/&0 The employer shall allow the appropriate representatives access to any affected employees and shall afford to those representatives such accommodation and other facilities as may be appropriate.

/(0 If in any case there are special circumstances which render it not reasonably practicable for anemployer to perform a duty imposed on him by any of paragraphs /)0 to /A0, he shall take all such stepstowards performing that duty as are reasonably practicable in the circumstances.

/%


28/29

/%0 -here an employer has failed to comply with a requirement of regulation %= or regulation %7, acomplaint may be presented to an employment tribunal on that groundC

/a0 in the case of a failure relating to the election of employee representatives, by any of his employeeswho are affected employees+/b0 in the case of any other failure relating to employee representatives, by any of the employeerepresentatives to whom the failure related+/c0 in the case of failure relating to representatives of a trade union, by the trade union+ and /d0 in any other case, by any of his employees who are affected employees.

/)0 If on a complaint under paragraph /%0 a question arises whether or not it was reasonably practicable for an employer to perform a particular duty or as to what steps he took towards performing it, it shall be for him to showC

/a0 that there were special circumstances which rendered it not reasonably practicable for him to perform the duty+ and /b0 that he took all such steps towards its performance as were reasonably practicable in thosecircumstances.

/=0 If on a complaint under paragraph /%0 a question arises as to whether or not an employeerepresentative was an appropriate representative for the purposes of regulation %=, it shall be forthe employer to show that the employee representative had the necessary authority to representthe affected employees.

/70 ;n a complaint under paragraph /%0/a0 it shall be for the employer to show that the requirementsin regulation %7 have been satisfied.

/@0 ;n a complaint against a transferor that he had failed to perform the duty imposed upon him byvirtue of regulation %=/)0/d0 or, so far as relating thereto, regulation %=/(0, he may not show thatit was not reasonably practicable for him to perform the duty in question for the reason that thetransferee had failed to give him the requisite information at the requisite time in accordance withregulation %=/70 unless he gives the transferee notice of his intention to show that fact+ and the

giving of the notice shall make the transferee a party to the proceedings.

/D0 In relation to any complaint under paragraph /%0, a failure on the part of a person controlling/directly or indirectly0 the employer to provide information to the employer shall not constitute

special circumstances rendering it not reasonably practicable for the employer to comply with such a requirement.

/A0 -here the tribunal finds a complaint against a transferee under paragraph /%0 well*founded it shall make a declaration to that effect and may order the transferee to pay appropriatecompensation to such descriptions of affected employees as may be specified in the award.

/&0 -here the tribunal finds a complaint against a transferor under paragraph /%0 well*founded it shallmake a declaration to that effect and mayC

/a0 order the transferor, sub2ect to paragraph /(0, to pay appropriate compensation to suchdescriptions of affected employees as may be specified in the award+ or /b0 if the complaint is that the transferor did not perform the duty mentioned in paragraph /@0and the transferor /after giving due notice0 shows the facts so mentioned, order the transfereeto pay appropriate compensation to such descriptions of affected employees as may be

specified in the award.

/&0 The transferee shall be 2ointly and severally liable with the transferor in respect of compensation payable under sub*paragraph /&0/a0 or paragraph /%%0.

2%


29/29

/%

Date post:	03-Jun-2018
Category:	Documents
Upload:	noddynoddy
View:	218 times
Download:	0 times

Powell+Collective+Consultation

Documents