Do You Need to Elect Employee Representatives?

24th July 2020

By Philip Cameron - 24 July 2020

As set out in our introductory post, we have put together three Q&A documents which together cover the importance of employee representatives (“reps”), when they are legally required, how they are elected and, once elected, what their role is. This article is the first instalment in that series, and the question we are considering is: when do you need to elect employee reps?

Q1: What circumstances require consultation with reps?

There are several different and distinct circumstances in which consultation with reps may be required. These include (but are not limited to): collective redundancies; TUPE situations; changes to pension schemes; and health and safety issues.

In some cases, an employer which recognises an independent trade union may already have specifically-appointed trade union reps who can consult on an employer’s proposal to make collective redundancies (more about this below). If not, then the employer will need to arrange for the election of reps for that purpose – unless it already has a suitable non-union employee representative body in place which has the authority to represent the affected employees about the matters at hand.

The focus of this series of articles is on the election of these non-union reps and their importance in the context of consulting about collective redundancies (and not, for example, reps appointed to consult about health and safety issues or business transfers).

Q2: Are you thinking that you may need to make 20 or more redundancies?

If the answer is yes, then provided that those proposed redundancies are going to take effect within a period of 90 days or less, you will need to inform and consult collectively with appropriate representatives of the affected employees. This includes any employees who may be affected by proposed redundancies, and is not simply limited to those who may be at risk of losing their jobs – it could include employees whose role or workload will be impacted by the dismissal of other employees.

Q3: What if I want to change terms and conditions of employment?

A straightforward change of terms and conditions would not trigger any consultation requirements although clearly it would be best practice to consult with them in a less formal way. If employees agree then great, job done! However, where employees don’t agree to the changes then you may be forced to dismiss (technically a redundancy) and re-hire on the new terms. If this impacts 20 or more employees – that’s right, you will need to consult with their reps.

Q4: I thought the requirement to collectively consult with appropriate reps only applied in a redundancy situation?

The reason you may have to consult with appropriate reps when you are considering changing terms and conditions of employment is because the law defines ‘redundancy’ in two distinct ways. The first one we are all familiar with: a reduction in the need for work. However, a redundancy is also defined as a dismissal for a reason not related to the individual concerned. That would cover restructurings and also dismissals where the reason is to change terms and conditions of employment (e.g. a termination and re-hire scenario).

Q5: Is an election of reps automatically triggered in a collective redundancy situation?

No, there is no automatic requirement to elect reps, even if the requirement to consult with reps has been triggered due to a collective redundancy situation arising. This is because you may already have appropriate reps in place who can be consulted for these purposes, without the need for an election.

Q6: What if we recognise a trade union and already have trade union reps in place?

In all cases, the starting point according to the law is that where an employer recognises a trade union in respect of the employees concerned, it must consult with the reps of that trade union.

That is fine where the bargaining unit covers all of those sections of the workforce affected by the proposed dismissals. If it doesn’t, then an employer will need to work out how these employees can be represented, which (as above) may require an election. If you do not recognise a trade union, then the position is as above and you will most likely need to elect reps (unless reps with the requisite authority have already been elected).

Q7: We don’t recognise a trade union, but we do have an employee forum. Can we consult through this forum instead?

Possibly. If you have recently consulted with employees about collective redundancies or other matters, you may already have an employee forum which includes elected reps.

That may be a Works Council for example. We refer to these as “general” reps – reps who have been elected for a more generalised purpose who can represent employees and be consulted with about a range of matters, potentially including collective redundancies. If that is the case, then you may instead be able to use this employee forum to consult with reps, without having to appoint reps specifically for the purpose of consulting about the proposed redundancies. A note of caution: if you do already have a body of reps in place, it is important to ensure that they are suitable and appropriate to consult about collective redundancies – this may fall outside the scope of their authority. For example, it would not be appropriate to consult about collective redundancies with a sport and social committee. They will also need to have been elected or appointed by those affected by the redundancy proposals. If you are in any doubt, we would recommend electing new reps for this purpose.

Q8: We don’t recognise a trade union and do not have a pre-existing employee forum - what do we do now?

If you do not already have any elected reps in place, or if the “general” reps which you do have in place do not have the authority to represent employees about collective redundancy situations, then you are left with no choice - you will need to arrange for reps to be elected.

You could decide to elect new “general” reps with an expanded authority, so that they are able to consult about collective dismissals more generally (and not just in this specific instance). Alternatively, you could run an ad hoc election to appoint what we refer to as “special” reps, who are elected by employees specifically for the purpose of consulting about collective redundancies. Note that if you are carrying out an election for “special” reps, then there are some legal formalities to comply with when running the election.

Q9: Can’t we just inform and consult our employees directly without all this hassle of appointing reps?

This is not to be recommended as a first step!

The law says that an employer must consult about the dismissals with appropriate representatives and not directly with the affected individuals. Failure to comply with this can be a costly error – it can lead to “protective awards” of up to three months’ actual salary for all employees that it made redundant or proposed to make redundant. This award is in effect punitive: and tribunals start with the maximum and take any mitigation from the employer into account. Where there are large numbers of employees who are or may be made redundant this is potentially quite costly.

Q10: What if the employees don’t elect reps or are really slow in electing reps?

If you have determined that you need to elect reps, and you then accordingly issue invitations to employees to elect reps, it may be that the employees (for whatever reason) fail to respond to the invitation and thereby fail to elect reps.

This ostensibly puts you in a very difficult predicament – you cannot consult with reps who do not exist! If that does happen, and you are not able to comply with the legal duty to consult with appropriate representatives about the proposed dismissals, the law provides a “special circumstances” defence for employers which you could most likely rely on in this scenario. That said, even though you may be freed from the obligation to consult with reps, the duty to inform employees about the proposed dismissals still exists, and it may then in that situation be necessary to share information about the proposed dismissals with each of the affected employees themselves.

If you or your organisation would like more information about electing employee representatives, please get in touch with your usual GQ|Littler contact or email [email protected].