If there is no recognised union, your employer must consult 'employee representatives'.
The election of employee representatives is covered by the Information and Consultation of Employees Regulations, 2004. Unfortunately for unions, the legislation does not define who might be considered genuine representatives of the employees, for the purpose of negotiating an agreement. The regulations do state, however, that all employees must be involved in the appointment or election process, and must be represented by one of those elected or appointed. Employees must be allowed to nominate candidates and to vote in the election.
As the TUC-supported career app, WorkSmart, makes clear, it is your employer's responsibility to enable ballots to take place. There may be a single ballot, or separate votes for different parts of the workforce if the employer believes this would bring about better representation. Any ballot must be confidential. The ballot process must be long enough for all eligible employees to take part.
Electing employee representatives
You may be in a workplace which already has an agreement to allow for employee representatives. This is often called an 'information and consultation agreement', or similar. If so, check the agreement to see if it gives those representatives the right to represent staff in redundancy situations.
As Law at Work points out, an existing representative body – a staff association, for example – must be authorised by the employees it claims to represent, to act on their behalf during the consultation. The onus is on your employer to prove that any such representative body has been authorised in this way.
An existing representative body must also be given the legal right, under its constitution, to negotiate on behalf of those employees at risk of redundancy. Consultation, on its own, is insufficient. This is because collective consultation must be carried out 'with a view to reaching agreement' (Law at Work 2020, pp 415-6). A representative body must have the authority to negotiate on behalf of employees, rather than merely transferring information and views.
If your workplace has no agreement which allows for employee representatives, they can be elected specifically for the consultation. Your employer may need to provide training to those who are elected.
ACAS says that for elections to be fair, employers must ensure:
- Employees who stand for election are affected by the redundancy when the election takes place.
- Affected employees are not prevented from standing.
- Affected employees are given the right to vote for employee representatives.
- Affected employees can vote for 'as many candidates as there are representatives to be elected – or as many candidates as there are representatives in their group, if there will be representatives for particular groups of employees'.
- Votes can be made secretly and counted accurately.
- Enough employee representatives are elected to 'represent the interests of all affected employees'.
Employers should also think about how long employee representatives are elected for. They must be allowed sufficient time to 'provide relevant information and complete consultation'.
If no-one stands for election as an employee representative, your employer should consult with all affected employees directly.