Employers contemplating using an existing employee consultative body for collective redundancy consultation, rather than organising elections for ad hoc representatives, should carefully consider the body’s terms of reference to determine whether it is appropriate.

The EAT has recently upheld an appeal from a tribunal decision that a body was appropriate, and remitted the case to be reconsidered. The tribunal had failed adequately to consider the purpose of the body, the impact of some members being co-opted rather than elected, and the fact that the body was expressed to be “non-negotiating”. The burden of proof is on the employer to show that the body had authority to represent the affected employees.

The EAT also ruled that it is not enough for an employer to provide an opportunity to consult on ways of avoiding and minimising dismissals and mitigating the consequences – it must raise these issues itself if the employee representatives do not.

The trigger for the obligation is when dismissals are “proposed” and the EAT followed previous case law that this could not be read as meaning “contemplated” (the word used in the EU Directive), which might well be satisfied at an earlier stage of the process. (Kelly v Hesley Group)