'Involve the unions early' in virtual consultation exercises

If you have made redundancies recently, or you're planning redundancies going forward, it is highly likely you will need to conduct your consultation remotely. It's not ideal for something so important but it is inevitable given the latest lockdown which, as we know, is going to last for many weeks.So how do you embark on that and how do you make sure it goes smoothly?It is surprising, we think, given the length of the pandemicso far and the number of lockdowns we have seen, that there is so little guidance out there to help HR and management with this process, especially when you bear in mind the serious consequences of getting this wrong, especially collective redundancies with the risk of not only employment claims but also protective awards and often a lot of damaging publicity. The Acas guidance is pretty thin. It mentions remote consultation is an option but doesn’t provide much guidance on actually doing it. Yet we know it is something the unions are very focused on. Back in October the TUC ran an hour long webinar on conducting collective consultation remotely and it’s clear the unions have little time for managers who point to the technology as an excuse for failing to communicate adequately with staff and share information fully with reps. So what’s our take on this? We have been advising on this area regularly since the first lockdown back in March last year and I had the opportunity of catching up with Anne Sammon to understand the practical advice she is giving to clients. Anne joined me by video link: 

Anne Sammon: "So we think there are a number of practical issues around how you carry out collective consultation remotely. I think the first is the difficulty in electing representatives if you don't already have those and one of the things that we've seen lots of clients struggle with is balancing the need to allow employees to vote anonymously with also being able to check that each employee only votes once. So for example, if we were carrying out a physical election we would probably have a ballot box in the workplace that people would put their votes into. Some of our clients have found that because the postal service is under quite a lot of strain at the moment with Coronavirus, and people using that to send parcels etcetera, that actually they don't want to trust the idea of sending out a vote to an employee and waiting for that vote to come back in, so they're looking at using electronic systems and one of the difficulties with some of those systems is that it can sometimes be a balancing act between do you allow employees anonymity, so do you maybe use an MS Forms survey, or some sort of technology like that, or do you ask them to send in an email which is sent to a particular person to monitor? If you ask them to send in an email then everyone knows who they voted for, potentially but, equally, if you ask them to do something that's completely anonymous it's very difficult to ensure that there's only one vote per employee and so it's that kind of challenge that we're seeing clients facing. I don't think there is a single right answer. I think it's about looking at the particular concerns that you have as an organisation, what your experiences of running these types of exercise in the past, and taking everything into consideration and being able to show that you've made a reasonable decision based on all that information."

Joe Glavina: "What is the role for HR here? This is new for HR, like everyone else, but the're having to help managers in the front line and that must be difficult?"

Anne Sammon: "I think one of the challenges for HR is the way in which employee reps communicate both with the HR team but also with the individuals who they're representing and one of the problems with this kind of remote process is that you don't have the kind of emotional connection that you might have if you're in a meeting room all together. So we've seen a number of exercises where HR have actually been subject to what is effectively abuse from the employee reps in a way that they wouldn't have been had everyone being physically sat in a room together in a meeting because people are doing things by email, they're maybe behaving through email in a way that they wouldn't if they actually were physically talking to somebody else. So I think one of the challenges for HR has been to try and ensure that that process is balanced and fair but also that there are some boundaries set around what is and what isn't appropriate behaviour."

Joe Glavina: "Some of your clients are unionised. What's your experience of how the unions have behaved?

Anne Sammon: "I think it very much depends on the trade union and the trade union reps who are involved. We've seen some trade union reps being incredibly understanding and appreciative of the efforts that clients have gone to make the processes fair and open and transparent and efficient as possible. We've seen other trade unions maybe be a little bit more militant and raise arguments around the fact that actually it's not possible to carry out consultation remotely in the way that we're looking at doing because they don't have access to employees in the same way that they might otherwise have done if they were organising on site. So I think it's quite a mixed bag in terms of the approach that different unions are taking. I think my experience with the unions suggests that the earlier you involve them in the process the better the outcome is, always, for everybody and so I think my kind of top tip would be to seek to involve the unions as early as you possibly can and to try and establish at the outset that quite constructive dialogue rather than employer and union kind of taking a more adversarial approach."

On that last point, having a constructive dialogue with the reps, it is interesting watching the TUC’s webinar back in October. A theme running through the programme is the sharing of information with the reps – part of the section 188 duty of course. Legal adviser Nerys Owen chaired that webinar and this is what she said on that point: 

TUC video – ‘Webinar: Handling collective redundancy - what you need to know’

That’s fair enough. You don’t want technical issues to be an impediment to making it work, but, as Anne says, if you establish a good dialogue with the reps at an early stage you are likely to have a much smoother ride if you do have IT problems. 

Finally, on the subject of collective consultation, you may have seen in the news before Christmas the ECJ's rather worrying decision in Marclean Technologies pointing to a rolling 90-day period for the purposes of deciding whether the s188 duty has been triggered. We will be covering that case in detail very soon so watch this space.