Collective Redundancy – The Election of Employee Representatives

Posted: 18th July 2011

If an employer is ‘proposing to dismiss as redundant’ twenty or more employees at one establishment, within a period of 90 days, the collective consultation provisions of Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) come into play, whereby the employer must consult with ‘appropriate representatives’ of the affected employees. Where there is no recognised independent trade union representation, nor existing employee representatives authorised to act on the employees’ behalf, representatives must be elected by the affected employees. Where the employer fails to comply with these provisions, the Employment Tribunal (ET) can require the payment of a protective award.
In Phillips v Xtera Communications Ltd., the Employment Appeal Tribunal (EAT) held that in a situation where the number of employee nominees or candidates matches the number of representatives sought, there is no need for the employer to conduct a formal ballot in order to satisfy the statutory requirement for the election of employee representatives.
Mr Phillips was selected for redundancy and made various claims to the ET, including a claim for a protective award. He contended that Xtera Communications Ltd. had failed to oversee the election of employee representatives as required under TULRCA. The company had offered to hold an election if desired but, as there were only two candidates for the two positions and no objections were raised to the suggestion that they be appointed, no formal ballot took place.
The EAT held that Section 188A of TULRCA does not expressly require that a ballot be conducted or a vote be undertaken in every circumstance. Where the number of nominees is the same as the number of representatives sought, an election would merely involve the employer in expending valuable time and resources on a wholly unnecessary exercise.
In this case, it was open to any employee who objected to the nominees to put their own name forward or to nominate another candidate. Also, any staff member could have requested that a formal election be held. No such responses were forthcoming.
Furthermore, the ultimate safeguard against manipulation of the democratic process is the employer’s obligation, under TULRCA 188A(1)(a), to ensure that the election is fair.
If you are contemplating making staff redundant, we can advise you to ensure that the appropriate arrangements are put in place.