Before an employer begins to consult with union reps or elected employee representatives, they must provide them with written information.
This written information most cover:
- The need to make redundancies.
- How many redundancies are being considered.
- Which roles are at risk of redundancy (in what is called the 'selection pool').
- The employer's ideas about how to select employees for redundancy.
- Any proposed timeframes.
- Any proposals to calculate redundancy pay.
- How many agency workers the employer uses, where they work, and the type of work they carry out.
You may meet resistance when you try to obtain this information from your employer, on the grounds that releasing it would breach data protection legislation or commercial confidentiality. However, employers are able to provide the information because, as Law at Work points out, data protection laws allow 'the processing of personal data to comply with statutory employment obligations, and this includes the legal duty to consult collectively with unions' (Law at Work 2020, p 410). Additionally, information which might identify individuals could largely be removed from the data.
When it comes to an employer's concerns over commercial sensitivity, these do not override the duty to consult over redundancies and TUPE transfers (when a business changes owner, its employees may be protected under the Transfer of Undertakings (Protection of Employment) regulations, known as TUPE). Also, NUJ reps are able to enter confidentiality agreements which limit the disclosure of sensitive information provided by the employer during any consultation.
The process of consultation should include:
- Arranging regular meetings.
- The employer being as open as possible, listening to views and genuinely considering suggestions.
- Finding ways to reduce the number of redundancies, or avoid them.
- Deciding the best way to select employees.
- Providing support for affected employees.
- Deciding what to include in redundancy packages.
Employers must ensure that any representatives can:
- Inform employees about the proposals, and share information.
- Ask employees for their views and suggestions, and any questions they have about the proposals.
- Hold discussions with other representatives in order to produce a collective staff response.
- Hold meetings with managers and give feedback on responses from staff.
- Engage in open discussions to solve problems and reach agreements.
- Let employees know the outcome of any consultations.
If you have been provisionally selected for redundancy, your employer must make clear in writing that you are at risk of redundancy, and invite you to an individual, private meeting. You must also be given details of the selection criteria and how you scored, and an explanation of the scoring method, before the meeting takes place. Without these, you are unlikely to be able to challenge your employer's decision.
This meeting should be led by your manager, or whoever is leading the redundancy changes. It can be held in person, or by phone or video if there is a clear need – when working remotely during the coronavirus pandemic, for example – and you both agree to it. There must be at least one meeting by law, but in practice there will often be more so your employer has an opportunity to respond to any suggestions or requests you may have.
During these meetings, your employer must discuss their proposals, and why you are at risk of redundancy. This is an opportunity for you to ask questions and suggest how any redundancies could be reduced or avoided altogether.
ACAS provides a checklist of what you might discuss with your employer:
- Ways to avoid or reduce redundancies.
- How people will be selected for redundancy.
- Any issues you have with the process.
- Time off to look for a new job or training.
- How the organisation can restructure or plan for the future.
In return, your employer must hold a 'genuine and meaningful' consultation by listening to your ideas and trying to reach an agreement with you. They do not have to agree to any of your suggestions, but should seriously consider them.
While you have no statutory right to be accompanied by an NUJ rep or a companion to an individual consultation meeting, many employers allow this. In workplaces where the NUJ is recognised, the right to be accompanied may well have been negotiated. ACAS recommends that all employers allow accompaniment because this:
- Gives an employee support.
- Allows a neutral person to observe.
- Allows the rep or companion to speak for the employee if needed.
NUJ members often choose to be accompanied, if only to provide a witness to what is said and decided in the meeting.
ACAS also says employers should use a formal redundancy appeals procedure if employees feel they were selected unfairly. Check if your employer's redundancy policy has a time limit within which you must lodge an appeal. The appeal meeting should be led by a senior member of staff who has not been involved in the redundancy decision-making. If this is not possible, for example with a small employer, ACAS says the meeting should be led by a person 'as impartial as possible' or an independent consultant.
If you lodge a grievance about the redundancy process that relates to a legal right – for example, if you feel you have been a victim of discrimination – then you have a statutory right to be accompanied to the grievance meeting.