It is going to be one of the sadder consequences of the Coronavirus pandemic, that most employers are going to have to look closely at whether or not to make significant job cuts to their current headcount. Whilst some employers may view this as an opportunity to recruit and acquire staff either generally or in particular areas, most employers are going to be looking at scheduling necessary headcount reductions. The news that there are more than 7 million people currently on the Furlough Scheme has doubtless concentrated minds wonderfully at the UK Government, which is why the Coronavirus Job Retention Scheme has been extended until the end of July 2020 in its current format and is then being tapered rather than a cliff ending. Presumably some of the Government's thinking is that some employee's jobs may be saved, and some employee's jobs may be moved to part-time working, and to the extent that there are job losses these will be scheduled over three months rather than one horrendous month.
All of this, of course, will ensure that employers will be required to consider how collective consultation under section 188 of the Trade Union and Labour Relations (Consolidation) Act will apply in the current circumstances. Similarly, other employers are likely to be looking at restructuring contracts of employment. If employers are introducing adverse changes and are even contemplating the prospect that staff who decline those adverse changes would be dismissed, this would also trigger an obligation to consult under section 188. The Government's recent announcement that the Furlough Scheme is to be progressively wound down from 1 August 2020 onwards may also trigger a need for some employers to go through a collective consultation process sooner rather than later. Some employers will have furloughed staff on the basis that the employees were willing to accept that they topped up salary for 20% and were content to reclaim 80% of salary paid to employees from the Government's Furlough Scheme. If that reclaimable percentage were to go down to (say) 60%, there are some employers that might look in turn to reduce the salary paid to the employee so that their contribution remained at a top up of 20% (i.e. leaving the employee at 80% salary).
The rest of this note is equally applicable to a collective consultation which is focussed on job losses (i.e. redundancies in the ordinary sense) or at changes to contracts of employment.
1. Is it possible for an employer to conduct a legally compliant consultation exercise under section 188 in the current circumstances?
Employers may be concerned that it is, in practical terms, extremely difficult for them to consult in a legally compliant manner with employees who are either in lockdown and who are either not working at all, or who are working remotely. There is then a subset of that which is whether it is possible to consult with employees who are currently on furlough, without taking them outside the Furlough Scheme. The basic legal obligation is to consult with the employee representatives of affected employees and to provide certain statutory information to those representatives. It is not necessary to provide all of the information in section 188(4) to the representatives before collective consultation can start (see for example MSF v GEC Ferranti (Defence Systems) Ltd (No.2)  IRLR 113 and Akavan Erityisalojen Keskusliitto AEK Ry and others v Fujitsu Siemens Computers Oy  IRLR 944 ECJ,). Indeed an employer may well pass the trigger point for initiating collective consultation at a stage when it does not have all the necessary information. In the light of these cases it is clear that even if the employer is genuinely unable to obtain some of the statutory information because of difficulties caused by the current working conditions, this does not excuse a lack of consultation. Imagine circumstances where the employer is unable to identify the number of temp staff working in the business because the person with the relevant information is currently absent by reason of illness. This by itself is not an excuse nor a reason to defer collective consultation.
The statutory information to be provided is to be delivered to the individual representatives or the recognised trade union. Alternatively the information can be posted to them. (Section 188(5)).
Secondly, there is nothing in the collective consultative process envisaged by section 188 that requires face-to-face meetings between employee representatives and the employer. This applies whether one is talking about collective consultation or under general principles for unfair dismissal, individual consultation. If the employer neither has a recognised trade union in place for the relevant classes of employees at risk of redundancy, nor has a standing employee consultative committee, then it will be necessary for it to enable affected employees to elect employee representatives. First, there may be no need to hold any election if the number of candidates matches the number of representatives being sought by the employer (Phillips v Xtera Communications Ltd UKEAT/0244/10/DM). If a ballot is to be held then the ballot must be secret, but it is not necessary to have a ballot box with physical attendance to drop a ballot paper into it. Arrangements can be made for a secret ballot to be conducted online. It is necessary to consider the culture of the company in making any arrangements for online voting. We did recently encounter one case, where the employer and the union were both reluctant to step away from ballot box voting. Voting on key issues (annual pay rises for example) and the way individual employees voted was viewed by all as a strictly taboo subject even within the workforce. As such, neither the employer nor the union were happy about the idea of an online alternative. So it is important to respect the culture of the particular workplace where the redundancies are taking place. But such exceptional circumstances aside, the point is that there is nothing inherently objectionable in a secret ballot being run online, via a third party such as the Electoral Reform Society or an independent third party. We know that in some cases the employer will nominate someone within, say, the HR team who can act as the recipient of votes, and provided everyone is happy with that arrangement then there would be no need to appoint an external party to count the votes.
A further thought arises in relation to the election of employee representatives. The employer's obligation is to ensure that there are sufficient representatives to represent the interests of the affected employees (section 188A (1) (b). Within those parameters the employer has general leeway as to how many elected representatives the workforce will be able to elect. An employer may well lean towards a smaller number of employee representatives where there will be conference calls or video calls. The larger the number of employee representatives, the more difficult it will be to ensure that any conference or video calls are effective.
Similarly, the employer must provide “access” to the employees who are to be represented by the employee representatives. Nothing is said about this access having to be in person or face-to-face.
Overall there is nothing within the framework in section 188 which would render remote collective consultation with employees or their representatives as inherently in breach of the legislation.
Indeed, in the case of USDAW and others v WW Realisation 1 Limited (Case 320156/2010, the only collective consultation conducted by the administrator of that company was a meeting with the recognised trade union and a number of employee representatives dialled in remotely. It appears that the call was somewhat chaotic. Although the company was found to be in breach of its collective consultation obligations, the fact of that call was sufficient to reduce the protective award from 90 days' pay to 60 days’ pay per employee.
2. What is the role of furloughed staff in a collective consultation exercise?
There is a separate issue as to whether or not employees on furlough are able to stand as employee representatives or otherwise take part in collective or individual consultation. The background, of course, is that employees are not entitled to earn income or carry out any work or provide services for their employer, according to the Employer Coronavirus Guidance Note. However, the Guidance Note does provide that union representatives, whether official or elected, are able to carry out representative duties without rendering themselves ineligible for the Furlough Scheme. Similarly, ACAS have said that individuals can participate in their own disciplinary and grievance hearings without being taken out of the Furlough Scheme.
On that basis, we think it is very likely that employees are able to stand as employee representatives, and/or participate in redundancy consultation otherwise employers would, in effect be unable to make redundancies whilst employees are covered by the Furlough Scheme (and we know that is not the case from the Employee Furlough Guidance Note). The alternative would be that employees on furlough were deprived of the ability to be consulted prior to their dismissal (which is hardly likely). On that basis employers may wish to frame any invitation to a meeting, whether collective consultation or individually, in terms of an invitation to attend rather than requirement to attend. This is probably taking a cautious approach but, to the extent that the employer is relatively relaxed whether the employee attends a collective or individual consultation meeting, there may be little to lose by such an approach.
Note however, that if a staff body is being elected for the purpose of a collective consultation exercise it will be necessary to ensure that furloughed staff are made aware of what is happening and that they can stand as representatives and vote for their choice of representative.
3. What practical issues should the employer consider before and during remote consultation?
Our view is that at the first consultation meeting or indeed as a preparatory meeting, the employer and employee representative's side should meet to discuss how collective consultation is to operate remotely. It is not exactly unknown for collective consultation meetings to become feisty. In the circumstances, it can be hard enough to follow several different angry conversations taking place at the same time when everyone is in the same room. It is impossible to do so on a conference call. It would be sensible for the employer and the employee representatives to agree a protocol or etiquette for running collective consultation meetings. For example, something as simple as agreeing that mikes will be set to mute until someone has been asked to speak may reduce the likelihood of people speaking over each other. It may be agreed that at each meeting there will be a test run scheduled to ensure that everyone’s equipment is working and they can hear and be heard. It should probably be agreed that the agenda will be circulated for any meetings ahead of time, so that meetings can be run efficiently and also this will facilitate discussions amongst the representatives themselves to agree a common position. On that subject we would recommend that any agenda for such a consultation meeting has a space for AOB issues to be raised. If it is clear that the employer is making space and time for the employee representatives to raise whatever issues they wish to discuss, that may ensure that burning issues for the employee representatives do not get overlooked or shunted to the end of the schedule. In some cases, where there is no culture of online meetings the employer may indeed think of scheduling some training, perhaps with an external trainer, to enable the attendees to think about the challenges and how they can be addressed.
If the protocol is agreed up front then there is a far greater chance of preventing the breakdown in communication which can often then lead into legal claims and a hardening of attitudes on both sides. One should also be mindful that employee representatives and, in particular trade unions may be very concerned about their ability to interact with the employees they are representing. It may be appropriate to invite the trade union or employee representatives to talk about this too, since an employer who facilitates that access may be facilitating the consultative exercise to its own longer-term benefit as well as the benefit of its staff.
Clearly the precise practical issues to be considered before conducting collective consultation will vary from employer to employer and exercise to exercise. We have set out some of the issues below but it is important to realise that the golden rule really is to discuss the issue in an open fashion with employee representatives to try and come to an understanding about how this is to work as best it can in the circumstances.
For example, employers are under an obligation, in section 188(5A), to provide appropriate facilities to the employee representatives. The consultative arrangements need to ensure that appropriate representatives have access to the affected employees and that those representatives are afforded accommodation and other facilities as may be appropriate.
In our experience the issue of what amounts to "appropriate facilities" for employee representatives is rarely discussed. However, in the context of a business that has traditionally done collective consultation on a face-to-face basis, moving to do the meetings remotely, could be much more important. Will employers have to provide secure and secret conferencing facilities for meetings with employee representatives and their constituents? What about meetings between the employee representatives themselves, in preparation for consultation with the employer? Similarly, what about costs incurred by employees dialling into such calls. Employers might find that they are being asked to pick up the costs for such calls, as it would seem unreasonable to expect employee representatives to pay for the privilege of being an employee representative. There will be many such practical points to consider about the assistance that should be offered to employee representatives.
Equally if the employer is operating in a culture that tends to do meetings face-to-face, rather than remotely, many employees may be unfamiliar with video conferencing and certainly have no such facilities to enable video access from home. That would mean that conference calls etc. would have to be limited to audio lines only unless the employer felt it was appropriate to offer a choice with some people dialling in but others choosing to join by video link. Again employers should think as to how such calls will be effective. To take one example, if employers (or employee representatives) are going to be relying on documents as part of a presentation or statement of proposals, these probably need to be sent through before the meeting, as otherwise information contained in the document will have little or no impact during an audio call.
There are further aspects of the use of documents in online meetings. If the expectation is that they are sent out ahead of time to the employer, or employee representatives then it needs to be agreed very clearly what is to be treated as confidential and what is open for circulation. The attendees at a meeting may agree that they will not circulate material more widely and to non-attendees ahead of a meeting to discuss the document, but this should be reinforced in the labelling for any documents being sent out. Alternatively, if parties are going to be using video links only it may be possible to share a screen and work through a document together in the meeting. But this may slow any meeting down while parties are allowed time to read and digest the document.
Conversely, one of the other aspects of online meetings, which employers should consider, is that it is very easy to record such meetings without the other participants being aware of this. Obviously employers need to be aware that side bar conversations, and comments made on the assumption that what is said will remain "within these four walls" can no longer make such an assumption. But it might be worth considering whether employers and the employee representatives would agree that a meeting would be recorded and then employees covered by the consultation could watch the meeting itself. It is likely that some employers will recall in horror at this idea and be concerned about employee representatives "playing to the camera". However, if recording is entirely feasible covertly, this may go on without the employer realising what is happening. Obviously, of course if the employer raises it and the employee representatives agree that no recording should take place, the employer will be justified in feeling extremely disappointed if covert recording did take place. However, in general terms the Courts and Tribunals have been relatively hands off when it comes to admitting any such recordings into evidence, if there is a subsequent dispute. At the very least therefore, employers need to be alert to the fact that whatever they say could easily be recorded without the speaker being aware of it.
We consider that employers should look at making online collective consultation meetings shorter and potentially scheduling more of them. Generally, many people find that online meetings and video calls, particularly for those unfamiliar with them, are much more tiring than in person meetings. Secondly, it may help employee representatives who are being asked to attend collective consultation meetings, if they are not being required to give up a significant portion of their day in one go. Consider, for example, an employee representative who is also responsible for home schooling his or her child that day. It is likely to be far more productive to arrange two shorter meetings, dealing with specific topics, than one longer single meeting.
So far we have been looking predominantly at collective consultation but the employer conducting remote collective consultation also needs to think more carefully than normal about the process of briefing staff about its proposals and the progress of the collective discussions. Uncertainty or rumour are destructive in these circumstances so employers need to think about how they will communicate in a timely fashion with the wider group of staff affected by the proposals and also those not affected by the proposals but who might be worrying that similar measures might be applied to them. Is postal communications sufficient, if emails are not available for all? Is it acceptable to use both email and postal communications? If staff are not working and so are not logging into work emails regularly would it be possible to schedule updates at a given schedule so that people knew to log in? Alternatively, collective audio calls or videos may work.
An employer who is aware that many of its staff have English as a second language, may need to think carefully about how effective remote briefing will be. It may be familiar in a situation where announcements are made to a group of employees, with those whose English is weaker, benefitting from a translation or explanation from those whose English is stronger. That will not work in the same way in an online consultation. An employer may therefore need to think about ensuring that more documents are generated, setting out its proposals and any exchange of information with the employee representatives, and that these are translated into appropriate languages for those employees.
If it comes to individual consultation, which is being done remotely, then clearly there are a lot of potential benefits to allowing employees to be virtually accompanied into any consultation meetings. Some employers currently allow this but others do not. Indeed, if someone is in lockdown or working from home it may be that employers accept that a family member can be permitted to attend. In practice the employer will not know who is off camera, or sitting next to the individual on a phone call or conference call, prompting the individual. So it may be better to accept the inevitable and involve the family member too rather than have them off-screen and therefore more difficult to engage with constructively.
4. Is the Coronavirus a “special circumstance?”
One question which we have seen floated is whether or not the Coronavirus pandemic by itself would amount to special circumstances, which, by virtue of section 188(7) would remove the need for collective consultation. The short answer to this is that it is very unlikely that the pandemic by itself would amount to special circumstances. The Courts have traditionally taken a pretty restrictive approach to "special circumstances" and as a result it is very likely that there would need to be something else added into the mix before it could possibly amount to "special circumstances". If, for example, the Coronavirus pandemic brings about the demise of the largest customer of a particular business and as a result the business goes into administration or liquidation without any prior warning, triggering redundancies, that, could amount to a special circumstance. However, in truth the proximate cause of the redundancies is the insolvency of the business and not the Coronavirus pandemic itself and so would fall within the existing case law.
In any event, by virtue of section 188(7) an employer would still need to do whatever it could to comply with its collective consultations, even if it were able to demonstrate that "special circumstances" had rendered full compliance impossible.
5. Does the news of the winding down of the Furlough Scheme trigger collective consultation obligations now for employers?
Section 188 requires an employer to consult where it is proposing collective redundancies. The Directive uses the term "contemplating" rather than "proposing". A number of cases have considered whether there is, in truth, a distinction between whether the employer is proposing or whether it is contemplating redundancies. In the case of UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area), The British Association of Colliery Management UKEAT/0397/06/RN an employer is likely to have passed the trigger point for collective consultation when the closure of a workplace is proposed and it is recognised that dismissals will inevitably result from the closure.
In practice employers would have to acknowledge that there is an increased risk that they are passing the trigger point, at a stage when they are contemplating redundancies as one of a number of potential outcomes. Clearly, the winding up of the Furlough Scheme will mean that many employers are starting to run numbers (if they have not already done so) and contemplating the possibility of redundancies. Does this mean therefore that they are already in breach if they have not commenced collective consultation?
The short answer to this is that they are not in breach merely because they have not commenced redundancies and in the planning phase. The statutory obligation is not a requirement to consult as soon as the employer is contemplating or proposing redundancies. It is an obligation to consult in good time, once the employer has started contemplating or proposing redundancies. In many cases, provided the employer allows sufficient time for collective consultation before any redundancies take effect, and provided it does not reach any firm decisions before collective consultation starts about what it is going to do, then it does not need to start the consultation at the point when the trigger is reached. There could be a risk that there might be a change in the surrounding circumstances, which means that the employer's ability to consult collectively has become compromised by the delay. To that extent the employer is on risk. But in our experience, in most cases, provided the employer avoids creating the impression that it has made its mind up and the delay is about putting the finishing touches to plans that will be implemented in their entirety, then the employer will often defer the commencement of collective consultation. Often employers prefer to go into collective consultation with well thought through proposals. There is a danger in starting collective consultation too soon. It is unlikely to be a legal danger (since the trade union or employee representatives are unlikely to bring legal proceedings saying the employer was consulting too quickly). Instead, the difficulty is a practical one. Collective consultation may get bogged down and the employee representatives may get frustrated if the employer has clearly not thought through its plans and does not have details at its fingertips in response to the sort of questions that are put by the employee representatives.
Collective consultation and individual consultation is going to be more difficult for employers. However, if employers plan thoughtfully to address those and allow for the involvement of employee representatives in considering the practicalities of the situation then there is no reason why collective consultation and individual consultation cannot be legally effective and be seen to be fair by the workforce. The employer also needs to think through the arrangements for implementing any dismissals. In particular, employers need to consider the arrangements for issuing notice to employees. Does the contract permit notice to be served by post or email? What is the employer to do when it knows that employees are not currently living at the last known address given to the employer? Effective planning for a consultation exercise is essential because it is a step towards the conclusion of the overall process. But the employer needs to think about what happens after that exercise before or during that exercise.
New rules proposed to record working timeLaborLawMagazine, Issue 2