REDUNDANCY CONSULTATION AND NOTIFICATION (PL833)
An employer proposing to make collective redundancies is required
to consult in advance with representatives of the affected employees, and to
notify the projected redundancies to the Department of Trade and Industry. A
collective redundancy situation arises where twenty or more employees are to be
made redundant at one establishment within a period of ninety days or less.
Consultation must be completed, before any notices of dismissal are issued to
employees. A complaint of failure to consult may be made to an employment
tribunal, and must normally be brought within three months of the last of the
dismissals. Where a complaint is upheld, the tribunal may make a protective
award to employees of up to 90 days’ pay. In addition, the Government is
considering the case for making a small legislative change to make clear that
notifications to the Department of Trade and Industry must be made before any
redundancy notices are sent to affected employees.
This document gives general
information about the statutory redundancy consultation and notification
provisions contained in Part IV of the Trade Union and Labour Relations
(Consolidation) Act 1992
(TULR(C) A 1992). It also explains how these obligations fit with new duties
under the Information and Consultation of Employees Regulations 2004.
It is only intended to serve as a guide, and should not be regarded as a
complete or authoritative statement of the law. Authoritative interpretations
of the law can only be given by the courts. In addition, readers should be
alert to the possibility of developments in case law that may affect the rights
Who is covered by the provisions?
The provisions apply to all employers and employees except those
described below. They apply regardless of how long employees have worked for
their employer or for how many hours a week they are employed.
Who is not covered by the provisions?
The provisions do not cover:
anyone who is not an employee - for
example, an independent contractor or freelance agent;
members of the
police service and armed forces;
masters and crew
members engaged in share fishing who are paid solely by a share in the profits
or gross earnings of a fishing vessel;
Crown servants and
for a fixed term of three months or less, or engaged for a specific task which
is not expected to last more than three months, unless in either case the job
actually lasts for more than three months.
Information and consultation obligations
What is a collective redundancy situation?
A collective redundancy situation arises where an employer
proposes to dismiss as redundant twenty or more employees at one establishment
within a ninety-day period. For these purposes, the definition of "redundancy"
differs slightly from the one used to establish entitlement to statutory
redundancy payments. It means a dismissal for a reason unrelated to the
individual employee concerned. This might occur, for example, where a business
or plant closes down, or where an employer no longer needs as many employees to
carry out a particular task. It might also occur where dismissals are to take
place in a reorganisation or reallocation of work, but where there is no overall
reduction in the number employed because the employer is taking on new recruits.
The obligations may apply even when an employer intends to offer
alternative employment on different terms and conditions to some or all of the
employees, with the result that the number actually dismissed is less than
twenty; this will be the case if employees are to be redeployed on such
radically different terms and conditions that accepting the new posts amounts to
dismissal and re-engagement.
The obligations apply to compulsory redundancies,
but in some circumstances may also apply to “voluntary” redundancies if an
employee has no real choice whether to stay or to leave. If the employer is
contemplating 20 or more redundancies and is not sure whether there will be
sufficient volunteers, or whether some of the redundancies can be avoided, then
the obligation to consult employees and to notify the Department of Trade and
Industry will apply.
are under no specific legal obligation to consult employee representatives or
notify the Department in cases falling below the twenty-redundancies threshold.
However, they may be at risk of successful unfair dismissal claims if they fail
to warn and consult individual employees who are to be dismissed in such cases,
fail to apply dispute resolution procedures when required,
or fail to adopt a fair basis for selection
or to take reasonable steps to redeploy such employees.
Employers may therefore also wish to see the documents
Dismissed? (PL712) and
Dismissal - fair and unfair: a guide for employers
Who must be informed and consulted?
An employer proposing to make collective redundancies must first
consult appropriate representatives of any employees who may be affected by the
dismissals (or by measures taken in connection with them). Where those affected
are represented by an independent trade union recognised for collective
bargaining purposes, the employer must inform and consult an authorised
official of that union. This may be a shop steward or a district union official
or, if appropriate, a national or regional official. The employer is not
required to inform and consult any other employee representatives in such
circumstances, but may do so voluntarily if desired. A trade union may be
recognised for one group of employees in a company, but not for another.
Where employees who may be affected by the proposed dismissals,
or by measures taken in connection with them, are not represented by a
trade union as described above, the employer must inform and consult other
appropriate representatives of those employees. These may be either existing
representatives or new ones specially elected for the purpose. It is the
employer’s responsibility to ensure that consultation is offered to appropriate
representatives. If they are to be existing representatives, their remit and
method of election or appointment must give them suitable authority from the
employees concerned. For example, where redundancies are to take place among,
say, sales staff, it would clearly not be sufficient for the employer to inform
and consult a committee of managers set up to consider the operation of a staff
canteen; but it would be appropriate to inform and consult representatives
elected or appointed as a result of the Information and Consultation of
Employees Regulations 2004.
It may also be appropriate to inform and consult a committee of employees, such
as a works council or staff forum, that is regularly informed or consulted more
generally about the business’s financial position and/or personnel matters. If
the representatives are to be specially elected ones, certain election
conditions must be met. These are described below.
In non-union cases, where affected employees fail to elect
representatives, having had a genuine opportunity to do so, the employers
concerned may fulfil their obligations by providing relevant information to
those employees directly.
Employees may be affected by the proposed dismissals, or by
measures taken in connection with them, even though they themselves are not to
be dismissed. In the event of a dispute, whether or not any particular employee
or class of employees was affected would be for an employment tribunal to
decide. For further details, see the sections below on “Redress in cases where
employers have failed to meet their information and consultation obligations”
and “Complaints to employment tribunals”.
What are the election rules applying in cases where employee
representatives are to be specially elected?
The rules are:
a) The employer shall make such arrangements as are reasonably
practical to ensure that the election is fair.
b) The employer shall determine the number of representatives to
be elected so that there are sufficient representatives to represent the
interests of all the affected employees, having regard to the number and classes
of those employees.
c) The employer shall 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.
d) Before the election the employer shall determine the term of
office as employee representatives so that it is of sufficient length to enable
relevant information to be given and consultations to be completed.
e) The candidates for election as employee representatives are
affected employees on the date of the election.
f) No affected employee is unreasonably excluded from standing
g) All affected employees on the date of the election are
entitled to vote for employee representatives.
h) 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.
i) The election is conducted so as to secure that -
as is reasonably practicable, those voting do so in secret, and
votes given at the election are accurately counted.
Where an employee representative is elected in accordance with
these rules but subsequently ceases to act as such and, in consequence, certain
employees are no longer represented, another election should be held satisfying
the rules set out at (a), (e), (f) and (i) above.
Is there any minimum period for consultation?
The employer must begin the process of consultation in good time
and complete the process before any redundancy notices are issued.
In addition, consultation must begin at least:
days before the first of the dismissals takes effect (that is, when the
employment contract is terminated)
in a case where between 20 and 99 redundancy dismissals are proposed at one
establishment within a period of ninety days or less;
days before the first of the dismissals takes effect (that is, when the
employment contract is terminated)
in a case where 100 or more redundancy dismissals are proposed at one
establishment within a period of ninety days or less.
An employer who has already begun consultations about one group
of proposed redundancy dismissals and later finds it necessary to make a further
group redundant does not have to add the numbers of employees together to
calculate the minimum period for either group.
In a case where employee representatives are to be specially
elected, the employer will need to ensure that the election is completed and the
representatives are in place (having had an opportunity for appropriate training
if necessary) in time to allow the consultation process to be completed before
any redundancy notices are issued.
Individual periods of notice
Individual notices of dismissal may not normally be issued to
employees in a collective redundancy situation until the consultation process
has been completed in accordance with these statutory requirements (but see the
section below on “Special circumstances”). The required notice period will
depend on what an individual’s contract of employment provides for, subject to
the minimum periods set out in section 86 of the Employment Rights Act 1996.
What information must be disclosed?
The employee representatives will need enough information about
the employer’s proposals to be able to take a useful and constructive role in
the process of consultation. An employer must therefore disclose certain
information in writing . This must be:
to each of the appropriate representatives; or
by post to an address notified to the employer, or in the case of a trade
union, to the address of the union’s head or main office.
The employer must disclose:
reasons for the proposals;
numbers and descriptions of employees it is proposed to dismiss as redundant;
number of employees of any such description employed by the employer at the
establishment in question;
proposed method of selecting the employees who may be dismissed;
proposed method of carrying out the dismissals, taking account of any agreed
procedure, including the
the period over which dismissals are to take effect;
proposed method of calculating any redundancy payments, other than those
required by statute, that the employer proposes to make.
Scope of consultation
The consultation is to include ways of avoiding the redundancy
situation or dismissals, of reducing the number of dismissals involved and
mitigating the effects of the dismissals. Consultation should be genuine and
must be undertaken with a view to reaching agreement with the employees’
representatives. Employers and employee representatives should work together to
try to find common solutions.
There may be special circumstances where it is not reasonably
practicable for an employer to meet fully the requirements for minimum
consultation periods or disclosure of information. In such circumstances,
employers must do all that is reasonably practicable toward meeting the
It does not count as ‘special circumstances’ for these
purposes if the decision leading to the redundancies was taken by a controlling
body (e.g. a head office or parent company) that had not supplied the necessary
information or had not supplied it in time.
Stock Exchange rules
Stock Exchange rules do not preclude employee
representatives being informed and consulted in advance where collective
redundancies are planned in connection with a restructuring (eg a plant closure
or a takeover) which may involve price sensitive information. Provision can be
made for employee representatives to be subject to confidentiality constraints
for a specified period, but at the same time be sufficiently informed to hold
meaningful consultations with the employer.
Relationship with the Information and Consultation of Employees
(I&C) Regulations 2004
The I&C Regulations 2004 give
employees in larger firms rights to be informed and consulted on an on-going
basis about issues in the business they work. This includes decisions on
collective redundancies. The rights given by the I & C Regulations are in
addition to the consultation rights that are the subject of this guidance. An
employer proposing to make collective redundancies must comply with the
requirements described in this guidance, even if they have established separate
consultation arrangements as a result of the I&C Regulations. For example, if a
trade union is recognised in respect of employees affected by proposed
collective redundancies, the employer must consult representatives of that
union, even if there is a separate group of employees’ representatives set up as
a result of the I&C Regulations. Where there is a separate group of employees’
representatives set up as a result of the I&C Regulations, the employer would
only have to consult that group if s/he had agreed to do so as part of a
“negotiated agreement” made under the I&C Regulations. An employer who is
subject to the standard information and consultation provisions in the I&C
Regulations need not consult employees’ representatives under those provisions
if s/he notifies those representatives in writing on each occasion that the
TULR(C)A 1992 consultation duties are triggered that s/he will be consulting
under TULR(C)A 1992.
Rights of employees and their representatives
Employees and their representatives have certain rights and
protections to enable them to participate fully, effectively and without fear of
victimisation in the process of consultation. These are described below.
Protection against unfair dismissal and other detrimental
It is automatically unfair for the employer to dismiss any
employees wholly or mainly because of:
It is also unlawful for the
employer to take other detrimental action, short of dismissal, against any
employees on these grounds.
Access and facilities
The employer is required to allow employee representatives
reasonable access to their constituent employees and to such accommodation and
other facilities - e.g. use of telephone - as is appropriate. What is
appropriate will vary according to the circumstances.
Right to reasonable time off with pay
Employee representatives - whether trade union or not - have a
statutory right to reasonable time off with pay during their normal working
hours to perform their functions, and also to undergo appropriate training to
enable them to do so. The legislation does not specify the amount of time off
that it is reasonable to allow since this will vary according to the
circumstances. Payment should be at the appropriate hourly rate for the period
of absence from work. This is normally arrived at by dividing the amount of a
week’s pay by the number of normal working hours in the week.
Redress where rights of employee representatives are infringed
Representatives or candidates who are dismissed or subjected to a
detriment as a result of their activities may make a complaint to an employment
tribunal (see section of this document on complaints to employment tribunals for
further details). A complaint will not normally be considered unless it is made
within three months of the date when the alleged infringement occurred (although
in exceptional cases where the tribunal considers that it was not reasonably
practicable for a complaint to be made in time it can allow a longer period).
If the tribunal finds that a dismissal was unfair, it may order
the employer to reinstate or re-engage the employee or make an appropriate award
of compensation. Employers may therefore also wish to see documents Unfairly
Dismissed? (PL712) and Dismissal - fair and unfair: a guide for employers
(PL714). If it finds that other unlawful detrimental treatment occurred, it may
order that compensation be paid.
If the tribunal finds that the employer has failed to allow
employee representatives reasonable access or appropriate facilities, it shall
make a declaration to that effect and may make a ‘protective award’ of
compensation (see section of this document on redress in cases where employers
have failed to meet their information and consultation obligations for further
If the tribunal finds that a representative was unreasonably
refused time off, it shall make a declaration to that effect and award to the
representative an amount equal to the pay to which he or she would have been
entitled if time off had not been refused. If the tribunal finds that a
representative did not receive appropriate pay for time off, it shall order the
employer to pay the amount due.
Redress in cases where employers have failed to meet their information and
An employee may make a complaint to an employment tribunal that
an employer has failed to meet the requirements under TULR(C) A to inform and
consult (see section of this document on complaints to employment tribunals for
further details). Complaints about a failure relating to the election of
employee representatives may be made by any of the affected employees or by any
of the employees who have been dismissed as redundant. A complaint about any
other failure relating to employee representatives may be made by any of the
representatives to whom the failure related. A complaint about a failure
relating to trade union representatives may be made by the trade union. In any
other case, a complaint may be made by any of the affected employees or by any
of the employees who have been dismissed as redundant.
A complaint will not normally be considered unless it is made
within three months of the date on which the last of the dismissals takes effect
(although in exceptional cases where the tribunal considers that it was not
reasonably practicable for a complaint to be made in time it can allow a longer
Where the tribunal finds a complaint justified it will make a
declaration to that effect. In appropriate cases, whether or not the employees
are still employed, the tribunal may take steps to safeguard the employees’
remuneration by making a "protective award". It can do this at the same time as
it makes the declaration or later, after a further application to the tribunal.
The employer is required to pay employees covered by a protective
award their normal week’s pay for each week of a specified period, known as the
protected period, regardless of whether or not they are still working. To be
covered by an award, they must be employees whom the employer plans to dismiss
or has already dismissed as redundant and they must be employees in whose case
the employer has failed to comply with the consultation requirements under
TULR(C) A. The protected period will begin with the date on which the first
dismissal takes effect or the date of the tribunal award - whichever is
earlier. The length of the period will be determined by the tribunal, taking
into account the extent of the employer’s failure to consult and any extenuating
circumstances. It is however subject to an upper limit of ninety days in all
How is ‘a week’s pay’ calculated for these purposes?
A week’s pay is calculated by reference to a certain date which
is known as the "calculation date".
The calculation date for computing payments under a protective
the employee is dismissed before the date of the award - the same date as the
calculation date for computing a redundancy payment, whether or not the
employee is entitled to a redundancy payment;
the employee is still in employment - the date on which the award was made.
The method of calculation is similar to that used for the
purposes of statutory redundancy payments. Further details may be found in the
document Redundancy entitlement - statutory rights: a guide for employees
The payment under the protective is in addition to any payment
that an employee is entitled to under a contract of employment (or as damages
for breach of that contract) for any part of the protected period.
Cases where employee has received Jobseeker’s Allowance or income
The employer must deduct from the award and repay to the
Department for Work and Pensions an amount equivalent to any Jobseeker’s
Allowance or income support that the employee has received for any part of the
protected period. The tribunal, when it makes the protective award, will advise
the employer that certain information should be sent to the nearest Jobcentre
Plus office within a specified period. On receipt of this information the
Jobcentre Plus will advise the employer on a document called a "recoupment
notice" of the amount of benefit that has been paid. A copy of this notice will
be given to the employee. Only after the employer has received this notice, or a
letter stating that recoupment is not appropriate, can any part of the award be
paid to the employee.
Conditions of entitlement
Employees who are still employed will be paid under a protective
award only when they would be entitled to be paid under their contract of
employment or under their statutory rights during a period of notice. For this
purpose the whole remaining part of their employment is treated as if it were a
statutory period of notice. This means that employees who go on strike, or are
absent from work without good reason, or are granted unpaid leave at their own
request, or have time off from work under certain provisions of the Employment
Rights Act 1996, will not be entitled to payment. But employees who are absent
under contractual holiday arrangements, or because they are ill, because of
pregnancy or childbirth, or because of adoption, parental or paternity leave
will be entitled to payment. They will also be entitled to payment during any
period where the employer has no work available for them.
Employees who are fairly dismissed for a reason other than
redundancy, or who give up their job during the protected period without good
reason will, however, lose their right to payment for the rest of the protected
Offer of renewed or new employment
An employer may offer an employee re-engagement, either in the
old job or in different but apparently suitable work, before the end of the
protected period. An employee who refuses such an offer without good reason
will lose the right to payment for the rest of the protected period.
Right to a trial period
An employee who accepts an offer of alternative work is allowed a
trial period to see if the work is really suitable. For the purposes of
calculating continuity of employment this trial period is regarded as starting
from when the employee’s old job ends even where there is in fact a gap between
jobs. The trial period will normally continue for four weeks after the employee
starts work but may be extended by agreement between employer and employee in
order to retrain the employee for the new work. Employees who leave their work
with good reason or who are dismissed (for example because they are unable to
carry out the duties of the new work or the training) during the trial period
retain their rights to payment under the protective award. If, however, they
give up the work or training without adequate reason or the employer dismisses
them fairly for reasons unconnected with the changed terms of employment -
misconduct, for example - they will lose their right to payment for the rest of
the protected period.
Extension of trial period for retraining
The trial period may be extended to retrain the employee for the
new work, by agreement between the employer and the employee. Such agreements
must be made before the employee starts the new work; must be in writing; and
must specify the date that the trial period ends and terms and conditions of
employment that will apply after that date.
Employees have a right to a trial period if they start a
different job with their employer at any time during the protected period and it
makes no difference whether the employer offers them work before or after the
end of the old job.
What redress is available if an employer fails to pay money due
under a protective award?
If an employer fails to pay money due to an employee under a
protective award, the employee has a right to complain to an employment
tribunal. (See Section of this document Complaints to employment tribunals for
A complaint must normally be made within three months of the last
day for which there has been an alleged failure to pay (although in exceptional
cases where the tribunal considers that it was not reasonably practicable for a
complaint to be made in time it can allow a longer period).
If the tribunal is satisfied that the complaint is justified it
will order the employer to pay the employee or employees concerned the money due
to them under the award.
Notification to the Department of Trade and Industry
An employer who proposes to dismiss twenty or more employees as
redundant at one establishment within a period of ninety days or less has a
statutory duty to notify the Secretary of State for Trade and Industry. This is
so that government departments and agencies and the Jobcentre Plus Rapid
Response Service can be alerted and prepared to take any appropriate measures to
assist or retrain the employees in question The same definition of a collective
redundancy situation apples as for the consultation obligations - see section of
this document: What is a collective redundancy situation?
Is there any minimum period for notification?
A notification must be made a specified minimum time before the
first dismissal takes effect. In addition, the Government is considering the
case for making a small legislative change to make clear that notification must
be made to the Secretary of State before any redundancy notices are sent to the
The date of notification is the date on which it is received by the Department
of Trade and Industry.
The minimum times are:
between twenty and ninety-nine employees may be dismissed as redundant at one
establishment within a period of ninety days or less- at least thirty days;
hundred or more employees may be dismissed as redundant at one establishment
within a period of ninety days or less- at least ninety days.
These periods are the same as the minimum periods permitted for
consultation with employee representatives. An employer who has already
notified one group of proposed redundancy dismissals and later finds it
necessary to make a further group does not have to add the numbers of employees
together to calculate the minimum period for either group. There is no
obligation to notify redundancies of fewer than twenty employees within a period
of ninety days or less, but employers may nevertheless wish to consider doing so
in borderline cases - particularly if the numbers involved are uncertain.
What information must be disclosed in the notification?
The Department of Trade and Industry requires information in
writing about the employer’s proposals. Employers may notify by letter or
by form HR1, which can be obtained from any Redundancy Payments Office or
Jobcentre Plus office. The information required is similar to that which the
employer must disclose to employee representatives for consultation purposes
(see section on employers' information and consultation obligations of this
document). In addition, the notification must state where and with whom such
The notification should be sent by post or delivered by hand to
the office indicated on form HR1. If the employer’s proposals change
significantly after the notification has been given - for example, if the
numbers to be dismissed increase by twenty or more or if the dismissal dates are
to be brought forward or delayed - the Department should be informed. Employers
must give or send a copy of the notification to the representatives with whom
they are required to consult about the proposed redundancies. The Secretary of
State has powers to obtain further information if necessary. When notification
has been received in the form required, a formal acknowledgement will be sent to
There may be special circumstances where it is not reasonably
practicable for the employer to meet fully the requirements for minimum
notification periods. In such circumstances, the employer must take all
reasonably practicable steps toward meeting the requirements and explain why
they cannot be met in full. However, it is not sufficient simply to state that
it was not possible to comply because a controlling body (e.g. a head office or
parent company) had not supplied the necessary information or had not supplied
it in time.
Penalty for non-compliance
If an employer fails to give the required notification to the
Department, the Secretary of State may institute legal proceedings that could
lead, on summary conviction, to a fine of up to £5,000 (this upper limit is
subject to review from time to time).
Complaints to employment tribunals
Application forms and explanatory leaflets for making employment
tribunal complaints may be obtained from any local Jobcentre Plus office.
Advice may also be obtained from the Advisory, Conciliation and Arbitration
Service (Acas). When the tribunal receives the completed application form it
will send a copy of it to an Acas conciliator who, if conciliation is possible,
will attempt to get both sides to reach a settlement. Information given to a
conciliator in the course of his or her duties is treated as confidential. It
may not be divulged to the tribunal without the consent of the person who gave
it. If no settlement is reached, the tribunal will hear the case. Hearings are
conducted informally. The parties may claim travelling and other expenses,
including loss of earnings, within certain limits. They have the option to be
represented by a solicitor or by any other person of their choosing, such as an
official of a trade union or an employers’ association. Such representation is
not required, however.
The Department of Trade and Industry’s Redundancy Payments Service (RPS)
administers the notification provisions and can give more information. The
address to contact is:
The Insolvency Service
Redundancy Payments Office
83-85 Hagley Road
Their Helpline is on 0845 145 0004
The Advisory, Conciliation and Arbitration Service (Acas) can
help with queries about informing and consulting employee representatives.
was confirmed by the European Court of Justice in
Case C-188/03 Irmtraud
Junk v Wolfgang Kühnel
This is to reflect the decision of the
European Court of Justice in
Case C-188/03 Irmtraud
Junk v Wolfgang Kühnel