It is well known that the collective consultation provisions in s188 of TULR(C)A 1988 are engaged when an employer is 'proposing to dismiss' as redundant more than 20 employees within 90 days. The obligations can be quite onerous, with breach leading to a protective award of up to 90 days' pay for each affected employee.
In Hardy v Tourism South East, the EAT (HHJ Richardson presiding) confirmed that the collective consultation obligations are engaged even when the employer intends to offer alternative employment to the majority of employees, thereby bringing the number actually dismissed below twenty.
The rationale is that the employer is still 'proposing to dismiss' more than 20 employees, even if alternative employment is offered to some or all of them.
This case should serve as a warning to lawyers advising on general business restructures, where fundamental changes in job duties / working patterns etc. can be regarded as redundancy dismissals (within the extended meaning for the collective consultation obligations) and offers to re-engage on different terms and conditions.
Hardy v Tourism South East
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