Carrying out consultation – practical tips for employers

The current pandemic has highlighted the need for employee consultation for a variety of different reasons. We look at the practical steps employers can take to ensure such consultation is effective.

Employers may find themselves needing to consult, whether about the findings of a risk assessment for those employers looking to re-open workplaces, changes to terms and conditions of employment to help ride out a downturn in business or even possibly in respect of potential redundancies. Ensuring that such consultation is genuine and appropriate will be critical to meeting an employer’s legal obligations.

Decide how to communicate with your staff

Consultation requires employers to explain any planned changes to employees in order to obtain their feedback and input. For this reason, it is important that consultation is carried out at a formative stage before any final decisions are taken, otherwise it will be seen as a sham exercise. It may well be that, as a result of employee suggestions or ideas, the planned changes are amended or adapted.

Some forms of consultation must be carried out with representatives of the affected employees as well as with the employees themselves. For example, proposed redundancies affecting 20 or more employees at one establishment within a 90-day period require consultation with appropriate representatives of the affected employees, usually trade union representatives or, where the affected employees are not covered by a union recognition agreement, with their elected employee representatives (and there are rules in place about how such an election process should be carried out). Similarly, consultation on the significant findings of risk assessments looking at the safety of workplaces should be carried out with trade union representatives, health and safety representatives and employee representatives. If there are no appointed representatives in place, the employer must consult with all employees. This will be much easier in a small workforce but more problematic for a larger workforce.

The current pandemic presents additional problems for employers in terms of communicating with employees. Normally employers would look to hold a town hall-style meeting at which to discuss any proposed changes with the representatives, followed by individual one to one meetings with those affected. However, with employees working remotely and social distancing restrictions in place, such an approach is not currently suitable. Technology is likely to provide the answer for many employers, as long as employees and representatives have access to the appropriate equipment, for example the use of video or conference-calling technology. Employers should ensure that any medium used is secure if confidential matters are to be discussed.

Consulting with employees on furlough leave

The HMRC guidance now clarifies that employees who are union or non-union representatives may undertake duties and activities for the purpose of individual or collective representation of employees or other workers while they are on furlough leave, provided that, in doing this, they do not provide services to or generate revenue for, or on behalf of the organisation or a linked or associated organisation. Therefore, it is clear that consulting with representatives who are on furlough leave is permitted.

The guidance is silent on whether employees themselves can be consulted while on furlough leave although it does also have the same restriction on what they can do up to 1 July in terms of not providing services to or generating revenue for, or on behalf of the organisation or a linked or associated organisation.

It would seem illogical that employers could consult with representatives on furlough leave but not the individual employees and it is difficult to see how consultation, which is part of the legal obligation placed on employers, could be interpreted as the employee providing services to the employer. It seems sensible, therefore, for employers to proceed on the basis they can consult with employees during furlough leave.

Clearly explain what you want to consult about

In order for consultation to be effective, representatives and employees need to have sufficient information so that they can properly understand what is being proposed. In some situations, such as where the collective consultation obligations arise, there is set information which an employer must provide in order to inform representatives about the proposals and their consequences. Where there are no such formal obligations, employers will need to carefully consider how much information needs to be shared during the consultation process.

Give employees time to consider the proposals

Genuine consultation cannot be rushed, and employees and their representatives must be given enough time to consider the proposals and feedback any comments to the employer. This is particularly so in the current times when logistically it may be more difficult for representatives to contact their constituents and/or where remote working increases the need to hold several calls in order to effectively discuss the proposals with all whom they represent. Employers should ensure that consultation timetables are appropriate and reasonable in light of these additional challenges.

Listen and respond

Consultation processes often fail because employers do not properly consider the feedback received from employees. It is key for employers to take time to think about any suggestions received and whether those suggestions can be implemented. If not, employers will need to be able to explain why this is the case.

It is, however, important to remember that consultation does not have to result in agreement. All an employer is required to do is show that the consultation was a genuine attempt to try and reach agreement on the proposed changes. Giving plenty of time for the process, actively listening and responding to suggestions, will all help to demonstrate that this is the case.

Ending consultation

Only once all avenues have been properly explored will it be appropriate to bring the consultation process to a close. Employers should remember that, in collective consultation situations, any dismissals cannot take effect for either 30 or 45 days from the start of the consultation process depending on the numbers involved.