Acas has issued a new booklet on how to handle collective redundancies following the Government’s changes to the rules on collective redundancy consultation, including a reduction in the minimum consultation period from 90 days to 45 days when 100 or more redundancy dismissals are proposed within 90 days. Among other things, the Guide sets out case studies and provides a ten-point checklist for handling collective redundancies. The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013, which effects the changes, has now been published in its final form following its approval by Parliament on 26 March. The changes came into force on 6 April.
The Guide is intended to offer clarity for employers, employee representatives and employees about what the law says on collective redundancy (where 20 or more employees may lose their jobs within a 90-day period at a single establishment), the impact of case law and what common sense recommends. The Guide uses the word ‘must’ to indicate something is a legal requirement, and ‘should’ to indicate what Acas considers to be good employment practice.
On the difficult issue of what constitutes an ‘establishment’ for the purposes of collective redundancies the guidance states that, according to the ECJ, an ‘establishment’ means, depending on the circumstances, ‘the unit to which the workers made redundant are assigned to carry out their duties’. To help establish whether a workplace can be classed as an establishment, Acas suggests asking if a workplace:
is a distinct entity
with a degree of permanence and stability
with the ability to carry out the tasks it has been assigned, and
with a workforce, technical means and organisational structure that allow it to carry out its function.
Where employees work at different geographical sites Acas also recommends:
checking what individual contracts of employment say, in terms of any geographical location the employee is assigned to and any relevant management structure, and
being clear about what actually happens in practice. Are there any patterns to where employees work and for what periods of time.
In relation to fixed-term contracts the guidance suggests that, when counting the number of redundancies proposed, the employer must include any fixed-term contracts if the employer proposes to terminate the contract early on grounds of redundancy. Where a fixed-term contract is terminated on the date agreed in the contract, this does not need to be included in the number of proposed redundancies, even if it is within the same period of time as the proposed collective redundancies. This reflects another change made by the Order, excluding fixed-term contracts from the calculation of redundancy numbers.