Last week’s consultation paper sets out plans to reduce the minimum consultation period for larger collective redundancies. One option is to retain the current two-tier system, but to reduce the minimum period for 100 or more redundancies from 90 to 45 days. The alternative is to stipulate a minimum period of 30 days for all collective redundancies (ie where at least 20 redundancies are proposed at a single establishment within a period of 90 days). There are no plans to change the maximum protective award, which will stay at 90 days, whatever the number of redundancies involved.
There is no shortage of other issues which concerned respondents to last year’s call for evidence. Top of a very long list is when consultation needs to start, how to define establishment and how best to deal with collective redundancies in a TUPE context. Those who were expecting the Government to amend the law to deal with these issues will be disappointed. Instead it plans to issue a non-statutory Code of Practice to “address the principles and behaviours behind a good quality consultation, with a particular focus on dealing effectively with the most contentious issues”.
Some would say that an opportunity to address two fundamental flaws in our domestic legislation has been missed. One difficulty that continues to haunt the case law is that the trigger point for the start of collective consultation is not fully aligned with the wording used in the underlying EU directive. Our law says “proposing to dismiss as redundant” whereas the directive says “contemplating redundancies”. The other problem – which has nothing to do with the directive – stems from the confusing way the minimum consultation period is defined. Instead of counting forwards from the start of the consultation period to the point at which redundancy notices are issued, it is necessary to count backwards from when the first of the redundancy notices takes effect. That makes the interaction between the consultation period and contractual notice periods unclear. It also means that when embarking on collective consultation an employer can not calculate the minimum consultation period with certainty, at least if it is approaching the consultation with a genuinely open mind.