Two recent decisions from the Employment Appeal Tribunal have clarified two technical areas of collective redundancy which do not often arise in the cases: the election of representatives, and what happens when a claim for breach of the requirements is brought by an individual rather than by employee representatives.
In Phillips v Xtera Communications the EAT considered the election of employee representatives where nominations are uncontested. Where 20 or more redundancies are proposed within a 90-day period, collective redundancy provisions require an employer to consult with “appropriate representatives” of affected employees. This may require the employer to organise an election where appropriate union or other representatives are not already in place. In this case the EAT confirmed that, if the employer receives the same number of nominations as there are representative positions available, it does not need to go on to hold a vote or ballot. The employer can treat those nominees as having been “elected.”
Where an employer fails to comply with collective consultation requirements affected employees may be entitled to a protective award. Generally this claim is made by the relevant representatives on behalf of the employees. Where there are no representatives, an employee may claim the protective award in his or her own right. However, in Independent Insurance v Aspinall, the EAT recently confirmed that, unlike representatives, employees cannot claim the protective award on behalf of other employees. Unless there are appropriate representatives in place, employees will therefore need to issue individual claims themselves.