Covid-19 advisory – collective consultation conducted remotely

Out-Law News | 25 Sep 2020 | 12:00 am |

Matt McDonald advises on the practicalities of s188 compliance currently. 
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  • Transcript

    It is the sad reality of the pandemic that so many employers are looking closely at whether or not to make significant cuts to their current headcount. With the Furlough Scheme now tapering off, whilst some jobs will be saved, some will move to part-time roles and many, unfortunately, will be lost completely. Whether this means changes to employees’ terms and conditions or whether it means redundancies, if the numbers stack up it will mean employers having to consider how to comply with their section 188 collective consultation obligations. So a reminder - representatives of affected employees must be consulted 30 days before the first dismissal (or 45 days if there are more than 100 redundancies planned). If you don’t have any reps in place then you will need to hold some elections first before consultation can start – so bear that in mind because it can delay the process by a week or two. And remember, the collective consultation process must start before any individual consultation meetings. As always, whether in Covid times or not, those obligations are strict and they apply in full, unfettered. So how do you go about collective consultation in Covid times? I discussed this with Matt McDonald who joined me from Birmingham by video-link. I started by asking Matt how the arrangements for conducting consultation have had to change:

    Matt McDonald: “Historically, when collective consultation was required, the practicalities of it weren't that much of an issue. You needed a few meeting rooms to enable the reps to meet and you also needed to get those meetings in the diary but essentially, because everyone was in the workplace pretty much, the practicalities of both the meetings with the reps, and then the reps getting access to the individuals to speak to them was never much of a problem. Of course, now, what we're seeing quite a lot is some degree, or in some cases a totality, of people working remotely and that brings challenges with it. I think fundamentally what I would advise on that, and all of the points I'm going to make you really come back to this, it's really about thinking through exactly the practicalities, trying to anticipate some of those issues that are going to crop up as you're going through the process and then ideally trying to agree right at the outset of the collective consultation process, how that's going to work. So I would strongly recommend, and this ordinarily wouldn't have been the case in the past, just an initial meeting with the reps. Obviously, if they're already in place, you can just get that in the diary or after elected if you are needing to go through an election process. An initial meeting with the reps, just to talk through the practicalities and the mechanics of both how your meetings with them will go, how they will facilitate discussions amongst themselves assuming it's multiple numbers of reps, and importantly as well, how they are going to be able to access the individuals to consult with them and get their feedback so that they can feed it back to you the employer as part of their collective consultation obligation. So I'd strongly recommend doing that, and if you can agree a sort of framework and a protocol for how you manage the process, that's going to make things so much easier as you go through, it's going to make potentially contentious issues that could have caused a problem, could have caused delays, you can plan ahead for those and just make everything as smooth as it possibly can be. There will still be obstacles that come up I expect, but you can anticipate a lot of those and just a few that spring to mind. So actually, fundamentally, how are you going to meet with the reps because probably going to be difficult to do it face to face and so you might say well, okay, we'll do a Teams Meeting or some sort of Zoom, or whatever social media connector it is that you use, but have all of the reps necessarily got access to do that? In some industries they probably will, but in a lot, they won't necessarily, and remember you as the employer are obliged to effectively facilitate and enable these discussions and consultations to go ahead so it's not good enough just to say the reps have got to sort themselves out, you are obliged to facilitate these meetings. So thinking about that, and that might be just something as practical as providing someone with a laptop that doesn't otherwise have one just on a loan basis so that they can engage in the meetings virtually, it could be providing them with a bit of training, because again, you can assume that people are going to be computer literate but that's not necessarily the case, you might get people who are total technophobes and actually aren't used to this. It's going to be really difficult for those individuals so anything you can do to smooth that process can only be helpful. You've also got to think about how the employee reps connect with the individual employees because as I said, previously, that wasn't a problem because they'd all be in the office or in the in the factory, or whatever it is, together but now if they're not, how is that going to happen? Again, less have a direct obligation on the employer to facilitate that but even so it's going to be a worry for the employee reps, and it's going to be something they're going to have to address, so anything you can do to help with that is going to be, I think, well received and will hopefully help to smooth things over and ultimately it's in your interest as an employer, because anything you can do to make the process smoother, is going to help you and  is going to lead to fewer delays and that sort of thing. A couple of points in addition I would just flag. Recording of meetings. Now, obviously, you wouldn't ordinarily record meetings. Bear in mind that there's more of a risk of covert recording, even if it's done innocently. So you might have a rep thinking, I'm just doing this so I've got a record of it for myself. That might happen so be clear again it comes back to the point of planning at the outset. What are you going to agree for protocols? It's possible you might actually agree openly to record the meeting so that the reps can then use that as a tool for going to the individuals. I'm sure a lot of people will find that a horrific prospect, but it is something that some of our clients are doing. So again, think through that, that's a practical issue that if you don't think it through could cause delays, could cause problems down the road and you might have reps really struggling to get that message through to their employees. If there are documents, obviously, in the past, not a problem, you could bring them to the meetings, but you're not going to able to do that now. So again, things like screen sharing, or potentially even posting documents to people in advance. Again, screen sharing, hopefully those of us that are using Teams and Zoom and various other functions quite a lot, are quite used to this now, but a lot of people won't be so, again, bear in mind and allow time for those sort of individuals to get used to the process, to take the training if necessary, and then talk them through the actual process whilst you're doing those sorts of steps. So, in summary, really, at the outset, as I said, just sit down and don't sit down it just within your HR team, or whatever the community is that setting up this from the employer's perspective and come up with all of your plans and think that's it. Almost build this into the consultation itself in a strange way so you are almost consulting about the consultation. As I say, if you can agree protocols to deal with all of these oddities, all of these practicalities, try and anticipate the problems that come down the line, you will find that the delays, that are probably inevitable, will be much much less than they would have been - they'll have less of an impact – and we're already seeing this with some clients. Clients that have just tried to do it off the hoof are sometimes struggling. Those that have planned ahead and really thought these things through are finding it's a much smoother process than it might otherwise have been."