The Government has published draft regulations (The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013) to bring into effect the changes to collective redundancy consultation announced before Christmas (for further details, read our previous briefing).
A reduction in the 90 day consultation period
The draft regulations reduce from 90 to 45 days the consultation period before the first dismissal takes effect, where an employer is proposing to dismiss 100 or more employees at one establishment within a period of 90 days or less. The new 45 day period will apply to such proposals to dismiss made on or after 6th April 2013. Similarly, the 90 day period to notify the Secretary of State (the HR1 form) is reduced at the same time to 45 days.
The exclusion of fixed term contracts
The draft regulations exclude the normal expiry of fixed term contracts from collective redundancy consultation duties but not if the fixed term employee is to be made redundant at an earlier point, for example, before the expiry of the fixed term. It should be noted that the definition of redundancy here includes “dismissals for a reason not related to the individual concerned”, not the better known, but narrower, definition in the Employment Rights Act relating to workplace closures and the like.
Employers will welcome the exclusion of most fixed term contracts from collective redundancy consultation, thereby removing the need for continuous consultation programmes where there is a high incidence of such contracts.
The reduction of the 90 day period on the 6th April had been previously signalled by the Government. However, employers need to have regard for the fact that they remain under the legal obligation to begin consultation "in good time", according to EU law, to allow meaningful consultation to take place. Ensuring consultation is “meaningful”, regardless of any set timescale, remains essential for employers.
Finally, it should be noted that the maximum protective award for a failure to consult collectively remains at 90 days and is not being reduced.