Collective Redundancy – The Election of Employee Representatives

If an employer is 'proposing to dismiss as redundant' 20 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), whereby the employer must consult with 'appropriate representatives' of the affected employees, come into play. 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 situations where the number of employee nominees or candidates matches the number of representatives to be elected, it is not necessary for the employer to conduct a formal ballot in order to satisfy the statutory requirements regarding the election of employee representatives.Mr Phillips worked for Xtera Communications Ltd. at its Harold Wood site. In May 2008, the company was considering closing the site as part of a programme of substantial cuts. Members of staff were notified by email that more than 20 jobs could be lost and that a formal process of consultation would be undertaken. It was suggested that two employee representatives would be sufficient to negotiate with the company and staff were invited to indicate whether they wished to hold an election. If candidates were proposed and an election desired, this would be arranged.The employees held a meeting and agreed on two nominees to act as their representatives. Mr Phillips did not attend the meeting but signified to colleagues that he was in agreement with the decision taken. The company contacted all staff asking if there were any objections to the two people whose names had been put forward being elected and no objections were forthcoming. When one of the original nominees stepped down, a replacement came forward. A third person then volunteered to act as an additional employee representative. The company agreed to this and no objection was made by any employee regarding the revised arrangements.In the event, the Harold Wood site was kept open with a reduced workforce. Following a redundancy selection process, Mr Phillips and one other staff member were made redundant.Mr Phillips made various claims to the ET, including a claim for a protective award. He contended that the employee representatives were not elected in accordance with TULRCA because Xtera Communications had failed to comply with its obligation to arrange an election process. The ET rejected this claim.On appeal, 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 expending valuable time and resources on a wholly unnecessary exercise.Although the employees in this case were not given the opportunity anonymously to object to the candidates, it was open to anyone who dissented 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 made.Furthermore, the ultimate safeguard against manipulation of the democratic process is the duty on the employer, under TULRCA 188A(1)(a), to ensure that the election of employee representatives is fair.The appeal was therefore dismissed.If you are contemplating making staff redundant, we can advise you to ensure that the appropriate arrangements are put in place. Contact Eoin Fowell on 01752 292350.

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