Redundancy
8 min read
Consultation is not a formality
Employers who treat redundancy consultation as a script they must read aloud lose cases they should win. The obligation is to consult while the outcome is still open — which means before the spreadsheet is final.
Mei-Lin Cheung
Partner · Employer advisory
In short
Consult while the proposals can still change.
Define the pool before identifying individuals, not after.
Use criteria you can evidence.
Collective and individual consultation are separate duties.
The room where the pool is defined, long before anyone is told.
Consultation means the outcome is still open
The obligation is to consult at a formative stage, while proposals can still change. Where the pool has been fixed, the scores completed and the leavers identified before anyone is spoken to, the meetings that follow are an announcement in the grammar of a consultation, and tribunals have no difficulty saying so.
That does not require an employer to be undecided about the need for redundancies. It requires that the selection, the pool and the alternatives remain genuinely open to representation — and that responses are considered rather than logged.
Where employers most often go wrong
Defining the pool too narrowly around the individuals already identified. Using criteria that cannot be evidenced. Failing to search for alternative employment across the group rather than the team. And running collective and individual consultation as though they are the same exercise; they are not, and the thresholds and timings differ.
Keep the record as you go. A contemporaneous note of what was raised and how it was considered is worth more at a hearing than a well-drafted account written afterwards.
If the decision was made before the meeting, the meeting was not consultation. It was an announcement.
What to do next
If a process is being planned, the cheapest intervention is at the design stage. We will review the pool, the criteria and the timetable before anything is communicated.
This note is general information about the law in England and Wales. It is not advice on your situation, and time limits are short — take advice before you act.
More notes
