Employers are required to consult with appropriate representatives of affected employees where it proposes to make 20 or more employees redundant at one establishment within a 90-day period.
If there are no union representatives or existing employee representatives with a mandate to consult about collective redundancies, the employer will have to facilitate elections of new representatives.
This article addresses some of the frequently asked questions in relation to the practical difficulties of electing employee representatives and provides some tips on ensuring the election process is managed successfully.
1. Can individuals who are not affected employees be employee representatives?
Affected employees are employees who are at risk of redundancy or who may be affected by measures taken in connection with the redundancy dismissals. The definition therefore includes employees who may not, themselves, be at risk of redundancy, but may be affected by some of the wider organisational steps taken in association with the redundancies (e.g. if new working hours or shift patterns are proposed as a ‘knock on effect’ of the proposed dismissal of other employees).
Somewhat surprisingly, if there is an existing pool of employee representatives with a mandate to consult about collective consultations, and the employer chooses to use this group to act as representatives, those employees do not need to be affected by the dismissals.
If the employer invites the election of new representatives however, the candidates for election as employee representatives must be affected at the date of the election.
2. How can employees nominate employee representatives if they do not know who is affected by the redundancies?
An employer will have to tell an employee they are at risk of redundancy or affected but, for confidentiality purposes, the employer will not tell them which other employees are at risk or affected. A practical solution may be to advise employees in the constituency/department at risk that if they have a colleague they think would make a good employee representative, they can contact them to ask if they want to be a candidate. The employee nominating a colleague should be told to tell the nominee that they can answer yes or no without giving a reason for their refusal or acceptance so as not to disclose if they are affected if they do not want others to know.
If an employee would like to act as an employee representative themselves an employer may ask that they have their nomination seconded by an affected colleague, which again causes the same issue. If an employee wishes to stand for election they should be advised to contact others confirming that they would like to be a candidate and asking for someone who is affected to support their bid.
3. How can employers carry out the election process remotely?
The current coronavirus pandemic means that many employees are still working from home. This presents additional problems for employers in terms of conducting the election process which is often done in the workplace or by post – neither of which is currently ideal.
In these circumstances, many employers have successfully used voting products provided by secure third-party organisations, such as Survey Monkey. These can usually be adapted to ensure that the process is confidential (e.g. making votes anonymous) and that the email voting link can only be used once, should employees be tempted to vote multiple times.
Whatever method is chosen, the election should be conducted to ensure that, so far as is reasonably practical, voting is secure and secret, and the votes given at the election are accurately counted.
4. How can employee representatives contact employees who are furloughed?
Furloughed employees may not have access to their work email accounts (on the basis that they are prevented from undertaking any work for their employer during their furloughed period and some employers have terminated access to their email systems).
A pragmatic solution is likely to be for HR to ask the furloughed employees if they would be willing to share their personal contact details with their employee representative who would in turn agree to keep this information secure, confidential and would delete the details when no longer needed for the consultation process. If an employee didn’t want to share their details with their representative, HR could act as a mailbox and forward on any information to the employee that their representative wishes to send to them. This is not ideal however, and it defeats the advantage of having employee representatives disseminating information if HR has to take on this role as well as co-ordinating and facilitating the process.
5. Can an employer provide information regarding the redundancies to employees directly, or must it always communicate with employees via the elected employee representatives?
Where there is a recognised trade union the union is likely to want all communications to be sent via them. However, where employee representative is in situ employers can communicate with affected employees directly by simply informing the representatives first. In addition and practically, it is often a more effective use of time to run the individual and collective consultation processes concurrently – individual consultations usually start after the second collective meeting and when selection criteria has been agreed (if there is pooling and selection for any roles required). However, employers should take steps to ensure that the employee representatives receive the same information as individuals, and it is best practice to share any information with representatives first.
One thing to note with the collective process is that if the employer invites representatives and the employees fail to elect any, the employer is only required to give the s188 information to the employees (the informing duty) and the employer is relieved from the obligation of consulting collectively, Whilst this may appear appealing at first glance it will not absolve the employer from consulting individually with each affected employee and it is likely to make the process more unwieldy if a significant number of employees are affected, all sharing their views, counter-proposals and suggestions which the employer will have to digest, review, consider and respond to.
Tips on managing the election process:
- Employers should determine the number of representatives to be elected so that there are sufficient representatives to represent the interests of all affected employees. They should also determine the term of office of employee representatives so that it is of sufficient length to enable them to be informed and consulted properly.
- Employers should determine which type of voting system to use. First past the post is simplest, but a single transferable vote may be preferable where there are clearly defined factions within the workforce (to prevent all of the elected representatives coming from the same faction).
- Employers should ensure that no affected employee is unreasonably excluded from standing for election or voting. Eligibility criteria such as hours of work, grade of job etc. should be avoided. If the election process takes place remotely, employers should ensure that affected employees have access to adequate IT facilities.
- Employers should allow sufficient time for the election process. The election timetable should not be rushed, and sufficient time should be allowed to enable employees to stand as candidate, for those candidates to be considered and for votes to be cast and counted. If the election process is to take place remotely, it may be preferable to have more a longer election process.
- Employers should make sure that absent employees are able to vote by proxy or in advance.
- Employers should ensure that the election is conducted so as to secure that:
- So far as is reasonably practicable, those voting do so in secret; and
- The votes given at the election are correctly counted.
- Employers should decide what support will be given to the duly nominated candidates (e.g. use of facilities and training). Remember, candidates may need extra support during the current lockdown.
- Affected employees should be informed of the ballot results as soon as is practicable after voting has closed.
- The appointment of an independent party should be considered, to supervise and monitor the election process. However, this will not be appropriate in all circumstances and employers should record in writing why this was not appropriate (if applicable) in current circumstances.