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It's Your Future: the MiP guide to consultations

PART 2: THE LEGAL POSITION

Two reps taking notes at meeting

 

This section will help you to understand the minimum legal requirements for consultation, including what constitutes ‘meaningful consultation’ and ‘reasonable timescales’.

There are at least six circumstances in which employers have specific legal obligations to consult with employees and/or their representatives about their proposals. They are:

  • when staff may be dismissed
  • when staff may be made redundant
  • when staff may be transferred to a different employer
  • when occupational pension schemes may be affected
  • when health and safety issues may arise
  • when collective bargaining agreements are in place

The consultation should seek views from all directly affected staff, and all other staff if there is a risk of redundancy.

 

Dismissals & redundancy

If the proposals involve dismissals or redundancies, the consultation must look at ways to:

  • avoid the dismissals altogether
  • reduce the number of staff affected
  • mitigate the consequences of the dismissals

Your employer will fail in their legal duty unless they consult on ALL three of these aspects. For further details, see the case of Middlesbrough Council v TGWU (2001).

Under section 188(4) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) , the employer must provide the following information in writing to staff representatives:

  • the reasons for the redundancies
  • the number and description of staff the employer proposes to make redundant
  • the total number of staff of any description affected
  • proposals on how staff will be selected for redundancy
  • the proposed timescale for carrying out redundancies
  • proposals for calculating redundancy payments if they exceed the statutory minimum
  • the number of temporary and agency workers working for the employer, where they work and what type of working they’re doing

 

Two managers listening to legal adviser

‘Meaningful consultations’ & ‘reasonable timescales’

Employers have an obligation to consult with the appropriate representatives of the staff involved. This will normally be MiP alongside the other health unions. Section 188(2) of TULRCA states that consultation must be with a view to reaching an agreement and meaningful consultation should be tantamount to negotiation.

Section 188(1A) of TULRCA also states that consultation must start in “good time”. This means employers need to plan ahead, set a timetable to allow for meaningful consultation and supply all the relevant information to staff representatives as it becomes available.

For proposals involving 100 or more redundancies over a 90-day period, consultation must begin at least 45 days before the first redundancy dismissal. When fewer than 100 staff are involved, the minimum period is reduced to 30 days. Collective consultation should continue even after 30 or 45 days have passed if there are genuine issues left to be negotiated.

A good employer should re-consult if they make significant changes to to their proposals as a result of the consultation process.

If your employer fails to comply with the consultation requirements above, you may be able to take your complaint to an employment tribunal. Make sure you discuss the issue fully with your MiP national officer before pursuing any legal challenge.


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