As set out in our introductory post, we have put together three Q&A documents which together cover the importance of employee representatives (“reps”), when they are legally required, how they are elected and, once elected, what their role is. This article is the first instalment in that series, and the question we are considering is: when do you need to elect employee reps?
Q1: What circumstances require consultation with reps?
There are several different and distinct circumstances in which consultation with reps may be required. These include (but are not limited to): collective redundancies; TUPE situations; changes to pension schemes; and health and safety issues.
Q2: Are you thinking that you may need to make 20 or more redundancies?
If the answer is yes, then provided that those proposed redundancies are going to take effect within a period of 90 days or less, you will need to inform and consult collectively with appropriate representatives of the affected employees. This includes any employees who may be affected by proposed redundancies, and is not simply limited to those who may be at risk of losing their jobs – it could include employees whose role or workload will be impacted by the dismissal of other employees.
Q3: What if I want to change terms and conditions of employment?
A straightforward change of terms and conditions would not trigger any consultation requirements although clearly it would be best practice to consult with them in a less formal way. If employees agree then great, job done! However, where employees don’t agree to the changes then you may be forced to dismiss (technically a redundancy) and re-hire on the new terms. If this impacts 20 or more employees – that’s right, you will need to consult with their reps.
Q4: I thought the requirement to collectively consult with appropriate reps only applied in a redundancy situation?
The reason you may have to consult with appropriate reps when you are considering changing terms and conditions of employment is because the law defines ‘redundancy’ in two distinct ways. The first one we are all familiar with: a reduction in the need for work. However, a redundancy is also defined as a dismissal for a reason not related to the individual concerned. That would cover restructurings and also dismissals where the reason is to change terms and conditions of employment (e.g. a termination and re-hire scenario).
Q5: Is an election of reps automatically triggered in a collective redundancy situation?
No, there is no automatic requirement to elect reps, even if the requirement to consult with reps has been triggered due to a collective redundancy situation arising. This is because you may already have appropriate reps in place who can be consulted for these purposes, without the need for an election.
Q6: What if we recognise a trade union and already have trade union reps in place?
In all cases, the starting point according to the law is that where an employer recognises a trade union in respect of the employees concerned, it must consult with the reps of that trade union.
Q7: We don’t recognise a trade union, but we do have an employee forum. Can we consult through this forum instead?
Possibly. If you have recently consulted with employees about collective redundancies or other matters, you may already have an employee forum which includes elected reps.
Q8: We don’t recognise a trade union and do not have a pre-existing employee forum – what do we do now?
If you do not already have any elected reps in place, or if the “general” reps which you do have in place do not have the authority to represent employees about collective redundancy situations, then you are left with no choice – you will need to arrange for reps to be elected.
Q9: Can’t we just inform and consult our employees directly without all this hassle of appointing reps?
This is not to be recommended as a first step!
Q10: What if the employees don’t elect reps or are really slow in electing reps?
If you have determined that you need to elect reps, and you then accordingly issue invitations to employees to elect reps, it may be that the employees (for whatever reason) fail to respond to the invitation and thereby fail to elect reps.
If you or your organisation would like more information about electing employee representatives, please get in touch with your usual Littler contact or email info@littler.co.uk.
