Redundancy: your right to consultation
Employers should always consult with employees before making them redundant. Find out about the two ways this might be done - collective and individual consultation.
Ways of consulting you
There are two ways in which your employer might have to consult you about redundancy:
- collectively, which means consulting the whole group that is being made redundant
- individually, which means speaking to each person directly
Collective consultation
If your employer is planning to make 20 or more employees redundant within a 90-day period, your trade union, or elected employee representative if you don't have a union, should be consulted before anyone is given notice.
For these purposes, the definition of ‘redundancy’ differs slightly from the one used to find out entitlement to statutory redundancy payments.
The consultation should cover ways to avoid a redundancy situation, how to keep the number of dismissals to a minimum and limit the effects on those dismissed (such as offering retraining). It should include alternative work patterns and job share proposals.
The consultative process should continue until the issues have been aired and parties have had a reasonable amount of time to comment on information given and the proposals or counter-proposals which have been made.
It is important for the employer and employee representatives to show that they have acted reasonably throughout their dealings and it is good practice for parties to keep signed copies of any meeting minutes.
The speed of the consultative process is likely to depend, among other things, on the amount of resource devoted to it. It should take place at least 30 days before the redundancies are due to begin or 90 days if more than 100 employees are affected.
If this doesn't happen, you or your representative can take your employer to an Industrial Tribunal which can award up to 90 days' pay in compensation to each employee. This is known as a protective award.
Protective award
If you are covered by a protective award, your employer must pay you your normal week’s pay for each week of a specified period, known as the protected period, regardless of whether you are still working.
To be covered by an award, your employer must plan to dismiss or have already dismissed you as redundant and failed to comply with the consultation requirements under the Employment Rights (Northern Ireland) Order 1996.
The protected period will begin with the date on which the first dismissal takes effect or the date of the tribunal award - whichever is earlier. The length of the period will be determined by the Industrial Tribunal, taking into account the extent of the employer’s failure to consult and any extenuating circumstances. It is however subject to an upper limit of 90 days in all cases.
Conditions of entitlement
Employees who are still employed will be paid under a protective award only when they would be entitled to be paid under their contract of employment or under their statutory rights during a period of notice. For this purpose the whole remaining part of their employment is treated as if it were a statutory period of notice.
This means that if you go on strike; are absent from work without good reason; are granted unpaid leave at your own request; or have time off from work under certain provisions of the Employment Rights (Northern Ireland) Order 1996, you will not be entitled to payment.
If you are absent under contractual holiday arrangements, or because you're ill, because of pregnancy or childbirth, or because of adoption, parental or paternity leave, you will be entitled to payment. You will also be entitled to payment during any period where the employer has no work available for you.
If you are fairly dismissed for a reason other than redundancy, or give up your job during the protected period without good reason, you will lose your right to payment for the rest of the protected period.
Individual consultation
Your employer may consult you individually. This will normally involve:
- speaking to you directly about why you have been selected
- looking at any alternatives to redundancy
If this doesn't happen, your dismissal for redundancy may be unfair.
Where you can get help
The Labour Relations Agency (LRA) and Advice NI offer free, confidential and impartial advice on all employment rights issues for residents of Northern Ireland.
If you have doubts about the way your employer may have calculated your statutory redundancy pay you can call the Redundancy Payments Service.