Running a collective consultation process with a remote workforce during the COVID-19 pandemic

Author: Nick Chronias

Running a collective consultation process can be challenging, even in "normal" circumstances. However, with staff working remotely, or on furlough, due to the coronavirus pandemic, it is a process that has become even more complex.

Nick Chronias, partner at DAC Beachcroft, sets out the legal and practical concerns for HR to consider when running a collective consultation process with a remote workforce.

When is the obligation to consult collectively triggered?

The obligation is triggered when an employer is "proposing to dismiss" 20 or more employees at one establishment within 90 days or less. Consultation has to start in good time and at least 30 days (for 20-99 proposed redundancies) or 45 days (for 100 or more proposed redundancies) before the first proposed dismissal. Remember that for the purposes of the duty to consult, "redundancy" includes proposed changes to employees' terms and conditions if the employer is contemplating dismissal and re-engagement to achieve the change, not just site closures or workforce reductions.

In essence, a "proposal to dismiss" crystallises when plans involving redundancy dismissals are sufficiently developed to the extent that there are proposals of substance on which either the recognised union's, or employee representatives', input can be sought in a meaningful way. It does not need to be a definitive plan and the employer can still be considering alternatives to redundancies. In the context of the coronavirus pandemic, the duty to consult collectively is likely to be triggered if an employer is weighing up whether to pursue clear redundancy proposals, or continue to employ furloughed staff under the Coronavirus Job Retention Scheme.

The consequences of breaching the duty to consult collectively are far-reaching and could result in a protective award of up to 90 days' pay for each affected employee. There is no maximum limit on the amount of a week's pay when calculating the protective award and generally the figure will reflect the pay that the employee was entitled to receive under their contract of employment.

With whom does the employer have to consult?

The employer has a duty to consult with the appropriate representatives of any affected employee, that is either trade union representatives where there are recognised unions or, if there are none, with elected employee representatives. Consultation has to be conducted with a view to reaching agreement. That does not mean agreement has to be reached but does mean: consulting when the proposals are still at a formative stage; giving adequate information on which to respond; giving adequate time in which to respond; and conscientiously considering the response to consultation. While legally untested, employers are likely to be held to the same standards by an employment tribunal in consulting with a remote workforce.

How can employee representatives be elected?

Where there is no recognised union, employers must ensure that employee representative elections are fair and conducted in a timely way. The collective consultation process begins after the representatives have been elected and provided with the required information set out in s.188(4) of Trade Union and Labour Relations (Consolidation) Act 1992.

Elections can happen virtually. Employers can conduct an election using alternative means such as by postal ballot, anonymous online survey or voting by email to comply with both their legal obligations and the HMRC guidance on the Coronavirus Job Retention Scheme.

What if there are more nominees to be representatives than the number required?

An election will need to be held. Employers have a duty to ensure that no affected employee is unreasonably excluded from standing for election. In normal circumstances, nominees canvas for votes in person. During lockdown, employers should consider allowing the nominees to record video statements and circulate them to the voting employees, along with statements setting out their reasons for wanting to be an employee representative or circulating written candidate statements. Employers should retain control of the distribution of this information to ensure fair and equal canvassing by, for example: putting the information on an intranet site, attaching it to emails sent to affected employees, posting it, or a combination of these methods depending on its employees access to emails and the intranet.

Employers also have a duty to conduct fair and secret ballots. Some employers use polling companies to facilitate this electronically but it suffices to use numbered, posted ballot papers (where the numbers are not allocated to employee names) provided that the emails/ballot papers go to a person specifically charged with counting the votes and ensuring confidentiality.

What if there are no nominees to be representatives?

An employer cannot force the affected employees to elect representatives. Nor can it consult with non-existent representatives. Provided that the employer has properly and promptly sought nominees, it cannot do more. In that situation, it may claim that there are "special circumstances" that make it impossible to comply with its duty to consult (see below for other "special circumstances" considerations). However, if no representatives come forward, the employer is under an obligation to write to each affected employee setting out its redundancy proposals.

Can furloughed employees be representatives?

Yes, the government guidance on the scheme confirms that union or elected employee representatives, and accompanying colleagues, can perform their duties without affecting their furloughed status as long as they do not provide services to, or generate revenue for, or on behalf of their organisation or a linked or associated organisation (for example setting aside stock to be sold on-line subsequently would be a breach of the guidance as it would be revenue generating).

How can the required information be provided to the representatives?

Under s.188(4) of Trade Union and Labour Relations (Consolidation) Act 1992, the employer must provide certain information in writing to the representatives. The information has to be delivered either to the representatives directly or, if dealing with a trade union, sent by post to the trade union's main office. In reality, sending the information by email with a hard copy following by post is legally compliant. Given the challenge representatives will face in disseminating the information, employers should consider supplying it in a format that the representative can easily provide to the affected employees. As furloughed, or remote-working staff, may not have access to printers or large screens, it would be sensible to avoid sending large documents that employees may not be able to read easily.

How should the consultation process take place?

Where consultation is taking place remotely, it is important to ensure that the elected representatives have access to the necessary technology for participating in the process. Providing representatives with guides to using the technology and arranging "dry runs" to ensure that the technology works, and the representatives can use it, is also sensible, particularly where they do not already use the technology in their day-to-day work. If you are considering using a certain video conferencing platform, reach out to the representatives to ensure that they have a way to access the platform while maintaining social distancing and confidentiality. If not, consider sending them a company laptop with access to a protected server. There is no specific employer duty to ensure confidentiality, employers simply have to give the representatives access to affected employees. However, confidentiality worries may discourage affected employees from participating and it is therefore in an employer's interests to ensure the platforms being used are confidential. Many employers provide training to employee representatives that includes an explanation on respecting employer and employee confidentiality.

Consultation does not end with discussions between employer and representatives as the employer also needs to facilitate representatives seeking the views of the employees they represent. Depending on whether or not employees have work laptops, that can be easier said than done. If they do have laptops, then representatives will be able to arrange video conferences. If they do not, one option is for the employer to provide the representatives with a laptop which has video conference software on it which they can use to invite colleagues to virtual meetings using their phones. However, this of course assumes that employees have smart phones allowing them to join. If not, joining by telephone conference will suffice. Depending on employees' access to technology, this part of the consultation process could take either less, or more, time compared to consulting in a non-remote environment. It may be shorter given that furloughed employees do not have to balance the demands of their day-to-day work, but conversely the process may take longer, where employees do not have devices that allow them to participate quickly and easily.

What if the representatives want to halt the process until meetings can be held in person?

Given the current situation, it is appropriate and fair for employers to conduct the consultation remotely. This is the best way to ensure that employers are following the government guidance, maintaining the safety of their workforce, while also continuing to meet their obligations to inform and consult. If an elected or trade union representative tries to stall the process, it is open to employers to inform them that the process cannot be put on hold for an unknown period of time and, while the lockdown continues, the process will continue remotely. To make this argument stand up, it is important that the effective arrangements for virtual discussions, as described earlier, are in place, including those between representatives and the affected employees they represent. Otherwise, going ahead puts the employer at risk of successful protective award claims.

Should the individual consultation process continue?

Collective consultation is not a substitute for individual consultation. In order to minimise the risk of an unfair dismissal claim from an employee with qualifying service, an individual consultation process should also be followed. Given the current guidance on working from home where possible, it is likely that this process will also take place virtually, in which case ensuring that affected individuals have access to the necessary technology will be critical. In its absence, telephone conferences, while not ideal, may suffice. It is worth remembering that asking a furloughed manager to conduct individual consultation with an employee may constitute "work" in breach of the government guidance on the scheme. Ideally, alternative managers, who are not furloughed, should carry out consultation.

Is there any defence to a failure to inform and consult?

There is a very limited exception to the duty to inform and consult where "special circumstances" mean that it is not "reasonably practicable" for the employer to have consulted in full. Essentially, the test is whether or not the employer genuinely and reasonably failed to foresee the impending disaster. In light of the furlough scheme and other financial support available to employers, it is unlikely that an employment tribunal will find that the impact of the COVID-19 pandemic and lockdown on an employer's activities constitute special circumstances. As a result, a tribunal is even less likely to find that the circumstances were urgent enough to justify a failure to consult.

In summary

Collective consultation can take place during the coronavirus pandemic and while employees are furloughed. However:

• employers will need clear and persuasive reasons as to why they are proceeding with proposed redundancies while employees are furloughed;
• the mechanics of the consultation process are likely to be more challenging to organise given remote working (especially for workforces not provided with laptops or smartphones to do their jobs);
• non-furloughed managers should run the consultation process to avoid the risk of breaching government guidance; and
• the COVID-19 pandemic and lockdown will not, of itself, give "special circumstances" meaning an employer is excused from its collective consultation duties.