HR has ‘vital role’ in virtual collective consultation

If you’re planning mass redundancies how should you manage the collective consultation process when the staff you need to reach are furloughed or working remotely? In this area, the stakes are high, the duty is onerous and, importantly, employers cannot to use the pandemic as an excuse for failing to observe the strict legislation that governs the consultation process. These are the duties which are triggered by the proposed redundancy of 20 or more employees within a 90-day period in one establishment.

We know many employers will face this situation, if they are not facing it already. The furlough scheme has been extended until the end of September – that was announced by the Chancellor Rishi Sunak in the Budget back in March – but despite that support, many jobs will, unfortunately, be lost. Indeed, many businesses are already planning redundancy exercises and are now facing the practical challenges of informing and consulting furloughed employees or those working remotely, something which is completely new to them.

Those challenges include putting in place appropriate employee representatives if reps have not already been elected. The employer has to take reasonably practicable steps to make sure the election is fair and, in this situation, that means figuring out a system which, as far as possible, allows for voting in secret and makes sure the votes cast are counted accurately. You then need to conduct the meetings, making sure all the participants joining remotely have access to the right equipment – laptops of whatever – and that they are trained to use them properly. Similarly, the union and employee reps need to be involved of course, with arrangements in place to allow information-sharing and private conversations to take place with confidentiality obligations observed at all times. 
Doing all of that remotely is definitely a challenge and, as you would expect, we have been helping clients with this over the past year. Anne Sammon is currently advising a number of clients with their collective consultation arrangements and she joined me by video-link to discuss the issues. I started by asking whether it might be a good idea to have an initial meeting about how the consultation will run:

Anne Sammon: “I think it's a fantastic idea. I think it ensures that everyone is clear before you start your consultation process how the consultation process is going to run and that means that you don't have all those arguments at the start of your new consultation process on some substantive issue that might potentially set the wrong tone for those consultations. I think the other thing that's really interesting is something that I heard from a client the other day in terms of discussions they’d had with their trade unions about the fact that these virtual consultation meetings have worked so well, in terms of people being able to attend much more easily than having to find the time to travel into a physical location, that they actually want to continue with them post-pandemic. So even at the point at which we could have physical-in-person meetings, they actually want to embrace the changes that we've seen during the pandemic, to continue with virtual meetings, because they feel that they are more efficient and more effective way of liaising with their trade unions and I think it's those kinds of discussions that people need to be having now whilst we're still in the midst of all of this and still have the learnings kind of front of mind, so that those discussions can take place and people can decide how their consultations will look in the future.”

Joe Glavina: “Given all the technology that’s being relied on it must be tempting to go a step further and record the meetings and that would be quite easy to do. What’s your view on that?”

Anne Sammon: “I think there are positives and negatives, potentially, to recording meetings. One thing that sometimes you see as a result of people recording meetings is people being more guarded, the discussion not flowing in quite the same way, so there's a kind of question about whether or not the idea of recording a meeting might impact the flow of the conversation and that has to be balanced against the advantages of recording. One of the things about the technology at the moment is that it's very easy for an individual to record something covertly and therefore, you know, if you're the employer, if there are various different records of meetings being taken, you might decide that actually it's better to just kind of circumvent that and decide that there will be an official recording of the meeting that captures all the necessary information and that can then stand as the kind of comprehensive record.”
Joe Glavina: “As you say, there is a lot to think about and a lot of arrangements to get right and this will be a completely new experience for most people. I guess HR has a big role to play here?”

Anne Sammon: “I think HR’s role is absolutely key, partly because HR professionals will be used to thinking about the whole range of possible solutions, and also the impact that those may have on employees with particular protected characteristics, for example. So, one of the challenges that we've seen for some of the virtual meetings has been that those that have particular disabilities actually feel that they're not able to participate as well in a virtual meeting as they might be able to participate in an in-person meeting and what you tend to find is that HR professionals are absolutely on top of those types of issues and they will be front and centre of their thoughts when they're working through any process, and so they can be super helpful in highlighting potential issues that that can be avoided by just a little bit of thought and planning and consideration at the outset.”

Joe Glavina: “I know you have been helping a number of clients through this during the pandemic and some have struggled more than others. What have you seen go wrong?”

Anne Sammon: “So, I there are a few things that we've seen go wrong with consultation meetings. The first is people failing to attend, or the technology failing, and people not being able to dial in and participate, or broadband connections not being sufficiently good that actually individuals can meaningfully participate, and that’s when you start getting into that piece about has the consultation been a meaningful consultation, have we somehow inadvertently breached the relevant legislation? So, there's that piece about actually can people properly contribute to the meetings for a whole host of different technological reasons. The other thing that tends to be a little more difficult is, in a meeting if you've got representatives of an employer all sat together there is the ability to sort of kick somebody under the table if you think that they're saying the wrong thing, or going off on a tangent. It is much more difficult to do that to somebody when you're having a virtual meeting and so one solution to that is to kind of think about whether or not you set up a separate WhatsApp group or some sort of other means of communication so that if somebody starts going off on a tangent, or saying something that you think is potentially a bit difficult, you can kind of get them to rein it back in. I've seen a number of examples though where despite having set up those kind of chat channels, the individual hasn't seen the message and has continued to say some things that are potentially difficult for the employer. So, I think those are the two main issues that we've seen so far during the consultation process.”

If you have some concerns that your managers may not be ready to conduct a collective consultation exercise you may be interested in a pair of programmes we made earlier in the year on this. They’re called: ‘Are your UK managers ready for a collective consultation exercise?’ and feature interviews with our Head of Client Training, Trish Embley, explaining the process and the pitfalls. Both of those are available now for viewing from the Outlaw website.