By law, employers who propose to make 20 or more staff redundant at one establishment in a 90-day period, must consult in good time with the appropriate employee representatives.
This duty, set out in the 1992 Trade Union and Labour Relations Act, also applies when an employer proposes to dismiss and re-engage staff on different (usually inferior) terms and conditions—a practice commonly known as ‘fire and rehire’. But what does fair consultation look like?
The judgment in the case of R v British Coal Corporation and Secretary of State for Trade and Industry, gives a helpful foundation by setting out the requirements for fair consultation under the 1992 Act:
In short, fair consultation requires meaningful consultation. The employer has an obligation to engage with employees and their representatives—which will be the trade union where one is recognised—so that their voices can be heard and their opinions explored.
The consultation process should be used to facilitate ideas, with a view to reaching agreement on the decisions to be taken on the proposed changes. All four stages discussed above should be conducted in good faith. Judicial commentary on consultation shows that employers should define the objectives of the proposed changes, so that staff and their representatives have a clear understanding of them and can give an informed response.
In the NHS, consultations will usually be with the recognised trade unions, including MiP. For example, the trade union framework agreement for NHS England stipulates that consultations on redundancy will take place within the Partnership Forum. Within this structure, employers and representatives should work with a genuine aim to reach an agreement, by following the four steps above, in good faith for as long as reasonably possible.
If an employer acts disingenuously—meaning they have not adequately engaged with the consultation in good faith—a tribunal claim is possible under the 1992 Act.
Section 188(2) of the Act states that consultation should aim to prevent and reduce redundancies, or where this is not possible, mitigate the consequences. Section 188(4) sets out the information employers must provide on their redundancy proposals, which includes the business reasons, to ensure the consultation is meaningful.
In the case of Susie Radin Ltd, the Court of Appeal provided useful insight into the importance of meaningful consultation, by holding that an Employment Tribunal could make a protective award for failure to consult on redundancies even if there was no evidence that meaningful consultation would have produced a different outcome. Such protective awards are punitive on the employer and are not intended to compensate employees for financial loss.
In the judgment, Lord Justice Sir Peter Gibson confirmed “the absolute obligation on the employer to consult, and to consult meaningfully’, and that for “such consultation to be in good time and to be conducted with representatives who are fully informed by reason of the required disclosure specified in section 188(4)… the employer must undertake the consultation not as an end in itself but with a view actually to reach agreement.”
It is clear that the duty to consult is not a mere box ticking exercise. The costs to an employer who breaches their consultation obligations can be high: a tribunal can award up to 90 days’ pay per employee—a limit set to double to 180 days from April 2026 under the government’s Employment Rights Bill. //
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