For redundancies of one or two employees, there is no minimum period of consultation before the redundancy can go ahead and redundancy consultation can sometimes be carried out in as little as a week. However if between 20 and 99 employees are being made redundant from a particular establishment within a 90 day period, then there is an obligation to carry out consultation for at least 30 days, and to liaise with staff representatives. However some employers will scratch their heads about when the obligation to consult arises.
In United States of America v Nolan, CA November 2010, the questions was whether in a collective redundancy situation, the consultation obligation arises (i) when the employer is proposing, but has not yet made, a strategic business or operational decision that will foreseeably or inevitably lead to collective redundancies; or (ii) only when that decision has actually been made and he is then proposing consequential redundancies?
As the case turned on the Collective Redundancies Directive, and as the law on that was not clear, the Court of appeal referred the question to the CJEC (Court of Justice of the European Communities to you and me). It is unfortunate, in these times of economic uncertainty, that employers don’t have more clarity about such basic questions. Existing case law suggests that the obligation to consult arises when there is the formation of a clear, albeit provisional, intention. The prudent approach in the meantime would be to start consulting sooner rather than later.
With thanks to Emplaw for news of this decision.
RECULVER SOLICITORS
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