For how long is an employer obliged to consult with employees to obtain agreement to changes to their contractual terms?
An employer should always consult individually with employees with a view to obtaining agreement to changes to their contract, and it may also have an obligation to consult collectively. The length of the individual consultation period will depend on several factors, including the number of employees involved, the nature of the proposed change and the employees' responses. There is no minimum time frame for individual consultation. If the employees agree to the proposed changes, the consultation period may be relatively short.
In accordance with s.195 of the Trade Union and Labour Relations (Consolidation) Act 1992, the collective redundancy consultation obligations may also apply where the employer is proposing to change contractual terms. This is because, for the purposes of the duty to consult collectively, the definition of "redundancy" covers dismissal for any reason not related to the individual, which includes the situation where an employer proposes to dismiss (and offer re-engagement to) employees who do not agree to a proposed change to their terms and conditions.
Collective consultation should take place as early as possible to give adequate warning of the proposed changes. In any event, it must begin at least 45 days before the first dismissal takes effect when the employer is proposing to dismiss 100 or more employees within a period of 90 days or less, and at least 30 days before the first dismissal takes effect where the proposed number of dismissals is between 20 and 99.
Normally, when an employer first seeks agreement to a change to the employment contract, it will not know how many employees will agree to the change, or whether or not it will need to consider dismissing and re-engaging some of them. Therefore, to avoid delay, it is prudent for employers to consult collectively from the outset, where the changes will affect 20 or more employees.