Working with non-union representatives
Employee representatives during collective redundancy situations
If a collective redundancy situation arises, you have a legal duty to consult elected employee representatives where:
- you don't recognise any independent trade unions
- you recognise an independent trade union (or more than one trade union) to bargain on behalf of a group of employees but some of the employees you plan to make redundant don't belong to that group
You must also consult union representatives where you recognise an independent trade union and where at least one of the employees you plan to make redundant is part of the bargaining group for which the union is recognised.
What is a collective redundancy situation?
A collective redundancy situation is where you plan to make 20 or more employees redundant at one establishment within a 90 day period.
For more information on redundancies in general, see redundancy: the options.
Which employee representatives you should consult with
It is your responsibility to ensure that consultation is offered to appropriate employee representatives.
In some cases you may need to arrange elections to select employees to carry out this task.
However, if you already work with employee representatives in other capacities - eg where you regularly consult employee representatives in works councils, committees, etc - you may be able to use some or all of them for this purpose, and avoid elections.
Where you arrange elections, but no employee wishes to stand, you will have to consult all the affected employees individually.
If there are existing representatives, their remit and method of election or appointment must give them suitable authority from the affected employees. For example, where redundancies are to take place among sales staff, you could not inform and consult a committee of managers set up to consider the operation of a staff canteen.
However, it would be appropriate for you to inform and consult:
- representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
- a pre-existing committee of employees, such as a works council or staff forum, that you regularly inform or consult with more generally about the business' financial position and/or personnel matters
Arranging the election of employee representatives
If the employee representatives are to be elected specifically for the redundancy consultation, certain election conditions must be met.
When arranging to elect employee representatives, you must:
- make such arrangements as are reasonably practical to ensure that the election is fair
- work out the number of representatives to be elected so that there are enough representatives to represent the interests of all the affected employees, taking into account 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 classes of those employees
- before the election, determine the employee representatives' term of office so that it is long enough 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 that no affected employee is unreasonably excluded from standing for election
- ensure that all affected employees on the date of the election are entitled to vote for employee representatives
- ensure that 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
- hold the election in a way 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
If an elected employee representative ceases to act as one and, as a result, certain employees are no longer represented, you must hold another election satisfying the rules set out at 1, 5, 6 and 9 above.
The law does not state how many representatives you must elect or the exact process for choosing them. However, you need to consider whether:
- the employees have enough time to nominate and consider candidates
- the employees - including any employees absent from work for whatever reason - can freely choose who to vote for
- the arrangements adequately cover all the classes of employee who may be affected by the redundancy situation and provide a reasonable balance between the interests of the different groups
- you have any normal custom and practice in your business for arranging and holding such elections and, if so, whether you have a good reason to depart from it, if you think you need to
Where you give affected employees a genuine opportunity to elect representatives, but the employees fail to do so, you must provide relevant information to all affected employees individually.
Rights of employee representatives
Employee representatives in redundancy situations have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you.
LRA Workplace Information Service03300 555 300