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To Consult or Not To Consult

Much emphasis has been placed on employee engagement as a factor that can enhance, or hamper, business performance. 

The key to this is communication. 

In uncertain times, communication and consultation take on even more significance as people search for clarity. In fact, all companies with over 50 employees are legally obliged to consult with staff over significant business decisions which could include, for example, working conditions.

It’s important to note that staff can request a formal agreement if backed by 10% of the workforce or a minimum of 15 employees and, since the ICE Regulations came into effect in 2005 (ICE standing for Information and Consultation) The Good Work Plan, borne out of Government commissioned Taylor Report, has reinforced the importance of consultation by recommending that the threshold for requesting a formal agreement be reduced to 2%.

Although there are situations where there are legal consequences for failure to consult, it could be argued that the less tangible consequences such as the human responses to not feeling involved in decisions, can have just as disruptive an influence.

The involvement of employees in business decisions can often reap wider benefits and ACAS refers to information and consultation as the “building blocks of every effective organisation”.  Greater transparency can enhance relationships, building trust and confidence. 

Not to be confused with collective consultation where negotiation is the driver, consultation does not take the ultimate decision away from managers but is undertaken with a view to agreement.  Care should be taken to ensure that any period of consultation is meaningful, i.e. reasonable length and that it takes place in a timely manner (before decisions have been made).  Allowing employees to “have their say” with the possibility of making representations that have not previously been considered, can also increase feelings of involvement and empowerment where employees feel that they and their contributions are valued.

The Trade Union and Labour Relations (Consolidation) Act 1992 and Transfer of Undertakings (Protection of Employment) Regulations 2006 (2014) legislate for consultation, setting timescales for this in the case of redundancy to ensure adequate time is given to individuals affected.

  • 20-99 employees affected –  minimum 30 days consultation
  • 100+ employees affected – minimum 45 days consultation

In a redundancy situation, consultation with recognised Trade Unions is required or, where there is no Union, via elected representatives.  When working to a timeline, the time to elect representatives should be taken into account.  Where affected employees have been invited to elect representatives, but have not done this, the employer should then provide the information laid out under section 188 to individuals.

Section 188 sets out what consultation should cover which includes

  • Ways of avoiding the dismissals
  • Ways of reducing the number of employees to be dismissed
  • Ways of mitigating the consequences of the dismissal

There is a logic to the requirements under the legislation as it asks employers to consider alternatives and consider the point of view of those at the heart of the process. It also opens employees to the rationale for the difficult business decisions to be made. Often the changes being consulted on are unsettling and unwelcome, but the time taken to follow due process should serve to take some of the pain away.

Section 188 of the Trade Union and Labour Relations (Consolidation) Act reads


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