An employer’s duty to collectively consult is triggered where it is proposing to dismiss 20 or more employees at one establishment within 90 days or less. This duty to collectively consult most usually arises where redundancies are being proposed.
The duty to collectively consult can also exist where an employer wants to make changes to employees’ terms and conditions and is looking to do so by way of dismissal and immediate re-engagement on new terms also known as “Fire and Rehire”. Where 20 or more employees are affected, your employer should also collectively consult with you before looking to dismiss and re-engage staff. We have guidance on “fire and rehire” here.
The collective consultation duty is not applicable to disciplinary or performance matters.
What is collective consultation?
Where an employer proposes to dismiss 20 or more employees over a period of 90 days or less – either for redundancy, or as part of a dismissal and re-engagement exercise – it must do collective consultation.
Collective consultation includes:
- giving certain information to affected employees’ representatives, and
- then consulting with them.
Relevant representatives will include any recognised trade union in place where you work. Where a trade union isn’t recognised, your employer should consult with representatives elected by affected employees.
What is a consultation period?
You have a right to a consultation period.
The length of the collective consultation period depends on the number of redundancies (or dismissals in the case of dismissal and re-engagement). If your employer proposes:
- 100+ redundancies then they must consult with your employee representatives and notify the Secretary of State at least 45 days before the first dismissal takes effect; or
- fewer than 100 redundancies then they must consult with your employee representatives and notify the Secretary of State at least 30 days before the first dismissal takes effect.
During the collective consultation period, the employer must discuss specific issues including ways of avoiding or reducing dismissals (e.g. potential redeployment within associated companies) and mitigating the consequences of the dismissals (e.g. offering severance payments, career guidance or a contribution towards the cost of retraining).
An employer may also individually consult with affected employees regarding their potential redundancy, depending on what has been agreed in the collective consultation.
What if fewer than 20 employees are affected?
Even if your employer plans to dismiss fewer than 20 employees during a 90 day period, it should still consult with affected employees before giving notice of dismissal. Your right to being consulted depends on your length of service.
If you have less than two years’ service the employer is not required to consult with you, but it should do as a matter of good practice. If you have more than two years’ service, your employer should consult with you as part of a fair dismissal procedure.
Frequently asked questions
My employer is changing the terms for all employees, do the collective consultation rules apply?
Yes, if an employer decides to dismiss and rehire 20 or more employees from one establishment on within 90 days or less, the collective consultation rules apply. If fewer than 20 employees are affected, your employer should still do individual consultation with you to help you to understand the changes before they are made.
What can I do if my employer made me redundant, but didn’t follow the rules on collective consultation?
You can write to your former employer and explain that you were entitled to be consulted with and that your employer is in breach of the rules on collective consultation. You may be able to negotiate a settlement which would likely involve you entering into a settlement agreement.
You can bring a claim in the employment tribunal for failure to inform and consult. An employment tribunal may award you up to 90 days’ pay if your employer has not followed the rules on collective consultation, regardless of whether or not you actually worked that period.
You should speak to your employee representative, if you have one, and they may be able to make a claim on your behalf.
A claim may be brought by any of the affected employees or any employee who has been dismissed as redundant unless it is:
- a claim for failure to inform and consult a recognised trade union which can only be brought by the trade union; or
- a claim for failure to inform and consult other appropriate representatives which can only be brought by one or more of the representatives to whom the failure relates.
A claim relating to a failure to arrange an election of employee representatives or to comply with the rules on elections can be brought by any of the affected employees or by any employee who has been dismissed as redundant.
You can make a claim online here or by post.
Please be aware that there are strict time limits for making a claim to an employment tribunal. Claims must be made within three months after the date of your dismissal or the date when your notice period ran out. Late claims are usually not accepted and you will need to have a very strong reason as to why your claim should be accepted and why it is late if it is.
What can I do if my employer has fired and rehired me, but didn’t follow the rules on collective consultation?
The same answer applies as in the case of redundancy (see question above).
What claims can I make if I was made redundant?
Firstly, you have the right to fair selection criteria for redundancy. There are some selection criteria that your employer cannot use. For example, your employer cannot select you for redundancy because you are pregnant or on maternity leave, or because you have previously been a whistleblower.
A selection process and criteria should be transparent, objective, measurable, known by everyone it applies to and non-discriminatory. All employees including those absent, including those on furlough, unpaid leave or maternity leave should be consulted on selection criteria in advance.
Employers should consider the impact COVID may have had on employees e.g. increase in caring responsibility, absence linked to the pandemic whether for ill health, school and childcare closures, for self-isolating or shielding.
Any impact this may have had on productivity, attendance, or performance should be disregarded in redundancy selection. Ideally this should be treated in a similar way to absence and performance concerns arising from pregnancy and maternity. EHRC has set out guidance for employers here.
See our redundancy pages for more detailed information.
If your employer decides to dismiss you then you are entitled to a notice period. This notice period will be the greater of:
- the statutory minimum notice period, which is one week’s notice for each year of continuous employment up to a maximum of 12 weeks – for example, if you have worked for your employer for five years then you would be entitled to five week’s notice but if you have worked for your employer for 15 years then you would be entitled to 12 week’s notice; and
- your contractual notice period, which should be stated in your employment contract.
If you have worked for your employer continuously for two years by the date of your notice period ending then you also have the rights to:
- receive statutory redundancy pay; and
- take time off to look for work or arrange training.
You should check if your employment contract includes the right to a contractual redundancy payment (which may be larger than your statutory redundancy entitlement). If so then you will be entitled to receive that payment.
If you think you have been unfairly dismissed, i.e. if you think that redundancy was not the real reason for your dismissal or if you think that your employer did not follow the selection process correctly, then you may be able to make a claim for unfair dismissal or discrimination or both. Again you can make this claim online here or by post.
Please see the above response for the possible claims if your employer does not follow the rules on collective consultation.
My employer is insolvent and can’t pay me
If your employer is insolvent or cannot pay you then you can still apply to the National Insurance Fund for unpaid “employer’s payments”. This will cover your statutory redundancy payment and certain other sums due under your employment contract. For more information see our article on your rights if your employer is made insolvent
This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.