Redundancy series: Employee representatives

In this insight we consider the obligations that employers have to ensure that elected employee representatives do their jobs.

The collective consultation obligations on the employer under section 188 of Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) are to consult with the elected reps. There is no obligation to consult with or ensure that the affected individual employees engage in the collective process. The obligation to consult individually is required to avoid claims of unfair dismissal for those who have two years’ service or more.

In practice what usually happens is that reps speak to, correspond with and/ or meet their constituents to hear from them any collective points to feed into the consultations. Minutes of meetings, FAQs or any other documentation or information coming out of the consultation meetings are then fed back to constituents. However, where the employer is concerned about whether information is reaching employees, and to make the process smoother for the reps, the employer can agree with the reps that they will hold a repository of all information that affected employees can access and that the employer will disseminate the information to the affected employees on behalf of the reps. This ensures that all employees receive the same information regardless of who their rep is.

The ACAS Guidance on handling large scale redundancies sets out, at Appendix 4, the role and responsibilities of reps and it concludes by stating that: “it is management’s primary role to ensure good communications on the consultation process”.

Employers should therefore also train the employee reps on their role and responsibilities before the consultation process starts to ensure the reps are equipped to perform their role.