Trade Union and Labour Relations (Consolidation) Act 1992

Duty of employer to consult F1 . . . representatives E+W+S

Textual Amendments

F1 Words in heading omitted (26.10.1995) by S.I. 1995/2587, reg. 3(10)

188 Duty of employer to consult F2 . . . representatives. E+W+S

[F3 (1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be [F4 affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.]

(1A) The consultation shall begin in good time and in any event—

(a) where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days, and

(b) otherwise, at least 30 days,

before the first of the dismissals takes effect.

[F5 (1B) For the purposes of this section the appropriate representatives of any affected employees are–

(a) if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union, or

(b) in any other case, whichever of the following employee representatives the employer chooses:–

(i) employee representatives appointed or elected by the affected employees otherwise than for the purposes of this section, who (having regard to the purposes for and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf;

(ii) employee representatives elected by the affected employees, for the purposes of this section, in an election satisfying the requirements of section 188A(1).]

(2) The consultation shall include consultation about ways of—

(a) avoiding the dismissals,

(b) reducing the numbers of employees to be dismissed, and

(c) mitigating the consequences of the dismissals,

and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.]

(3) In determining how many employees an employer is proposing to dismiss as redundant no account shall be taken of employees in respect of whose proposed dismissals consultation has already begun.

(4) For the purposes of the consultation the employer shall disclose in writing to the [F6 appropriate] representatives—

(a) the reasons for his proposals,

(b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant,

(c) the total number of employees of any such description employed by the employer at the establishment in question,

(d) the proposed method of selecting the employees who may be dismissed, F7 . . .

(e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect. [F8 and

(f) the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any enactment) to employees who may be dismissed.]

(5) That information shall be [F9 given to each of the appropriate representatives by being delivered to them], or sent by post to an address notified by them to the employer, or [F10 (in the case of representatives of a trade union)] sent by post to the union at the address of its head or main office.

[F11 (5A) The employer shall allow the appropriate representatives access to [F12 the affected employees] and shall afford to those representatives such accommodation and other facilities as may be appropriate.]

F13 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsection [F14 (1A), (2) or (4)], the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances. [F15 Where the decision leading to the proposed dismissals is that of a person controlling the employer (directly or indirectly), a failure on the part of that person to provide information to the employer shall not constitute special circumstances rendering it not reasonably practicable for the employer to comply with such a requirement.]

[F16 (7A) Where—

[F17 (a) the employer has invited any of the affected employees to elect employee representatives, and]

(b) the invitation was issued long enough before the time when the consultation is required by subsection (1A)(a) or (b) to begin to allow them to elect representatives by that time,

the employer shall be treated as complying with the requirements of this section in relation to those employees if he complies with those requirements as soon as is reasonably practicable after the election of the representatives.]

[F18 (7B) If, after the employer has invited affected employees to elect representatives, the affected employees fail to do so within a reasonable time, he shall give to each affected employee the information set out in subsection (4).]

(8) This section does not confer any rights on a trade union [F19 , a representative] or an employee except as provided by sections 189 to 192 below.

Textual Amendments

F2 Words in sidenote to s. 188 omitted (26.10.1995) by virtue of S.I. 1995/2587, reg. 3(10)

F3 S. 188(1)(1A)(1B)(2) substituted for s. 188(1)(2) (26.10.1995) by S.I. 1995/2587, reg. 3(2)

F4 Words in s. 188(1) substituted (28.7.1999 subject to reg. 2(2) of commencing S.I.) by 1999/1925, regs. 2(2), 3(1)(2)

F5 S. 188(1B) substituted (28.7.1999 subject to reg. 2(2) of commencing S.I.) by 1999/1925, regs. 3(1)(3)

F6 Word in s. 188(4) substituted (26.10.1995) by S.I. 1995/2587, reg. 3(3)

F7 Word in s. 188(4)(c) repealed (30.8.1993) by 1993 c. 19, s. 51, Sch. 10; S.I. 1993/1908, art. 2(1), Sch. 1

F8 S. 188(4)(f) and word preceeding it inserted (30.8.1993) by 1993 c. 19, s. 34(2)(a); S.I. 1993/1908, art. 2(1), Sch. 1

F9 Words in s. 188(5) substituted (26.10.1995) by S.I. 1995/2587, reg. 3(4)(a)

F10 Words in s. 188(5) inserted (26.10.1995) by S.I. 1995/2587, reg. 3(4)(b)

F11 S. 188(5A) inserted (26.10.1995) by S.I. 1995/2587, reg. 3(5)

F12 Words in s. 188(5A) substituted (28.7.1999 subject to reg. 2(2) of commencing S.I.) by 1999/1925, regs. 2(2), 3(1)(4)

F13 S. 188(6) omitted (26.10.1995) by virtue of S.I. 1995/2587, reg. 3(6)

F14 Words in s. 188(7) substituted (26.10.1995) by S.I. 1995/2587, reg. 3(7)

F15 Words in s. 188(7) inserted (30.8.1993) by 1993 c. 19, s. 34(2)(c); S.I. 1993/1908, art. 2(1), Sch. 1

F16 S. 188(7A) inserted (26.10.1995) by S.I. 1995/2587, reg. 3(8)

F17 S. 188(7A)(a) substituted (28.7.1999 subject to reg. 2(2) of commencing S.I.) by S.I. 1999/1925, regs. 2(2), 3(1)(5)

F18 S. 188(7B) inserted (28.7.1999 subject to reg. 2(2) of commencing S.I.) by S.I. 1999/1925, regs. 2(2), 3(1)(6)

F19 Words in s. 188(8) inserted (26.10.1995) by S.I. 1995/2587, reg. 3(9)

[F20 188A

(1) The requirements for the election of employee representatives under section 188(1B)(b)(ii) are that–

(a) the employer shall make such arrangements as are reasonably practical to ensure that the election is fair;

(b) the employer shall determine the number of representatives to be elected so that there are sufficient representatives to represent the interests of all the affected employees having regard to the number and classes of those employees;

(c) the employer shall determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees;

(d) before the election the employer shall determine the term of office as employee representatives so that it is of sufficient length to enable information to be given and consultations under section 188 to be completed;

(e) the candidates for election as employee representatives are affected employees on the date of the election;

(f) no affected employee is unreasonably excluded from standing for election;

(g) all affected employees on the date of the election are entitled to vote for employee representatives;

(h) the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, may vote for as many candidates as there are representatives to be elected to represent their particular class of employee;

(i) the election is conducted so as to secure that–

(i) so far as is reasonably practicable, those voting do so in secret, and

(ii) the votes given at the election are accurately counted.

(2) Where, after an election of employee representatives satisfying the requirements of subsection (1) has been held, one of those elected ceases to act as an employee representative and any of those employees are no longer represented, they shall elect another representative by an election satisfying the requirements of subsection (1)(a), (e), (f) and (i).]

Textual Amendments

F20 S. 188A inserted (28.7.1999 subject to reg 2(2) of the commencing S.I) by S.I. 1999/1925, regs. 2(2), 4

189 Complaint F21 . . . and protective award. E+W+S

[F22 (1) Where an employer has failed to comply with a requirement of section 188 or section 188A, a complaint may be presented to an employment tribunal on that ground–

(a) in the case of a failure relating to the election of employee representatives, by any of the affected employees or by any of the employees who have been dismissed as redundant;

(b) in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related,

(c) in the case of failure relating to representatives of a trade union, by the trade union, and

(d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant.]

[F23 (1A) If on a complaint under subsection (1) a question arises as to whether or not any employee representative was an appropriate representative for the purposes of section 188, it shall be for the employer to show that the employee representative had the authority to represent the affected employees.

F23 (1B) On a complaint under subsection (1)(a) it shall be for the employer to show that the requirements in section 188A have been satisfied.]

(2) If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award.

(3) A protective award is an award in respect of one or more descriptions of employees—

(a) who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and

(b) in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188,

ordering the employer to pay remuneration for the protected period.

(4) The protected period—

(a) begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and

(b) is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with any requirement of section 188;

but shall not exceed 90 days F24 . . . .

(5) An industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal—

(a) before the [F25 date on which the last of the dismissals to which the complaint relates] takes effect, or

(b) [F26 during] the period of three months beginning with [F27 that date], or

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented [F28 during the] period of three months, within such further period as it considers reasonable.

(6) If on a complaint under this section a question arises—

(a) whether there were special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of section 188, or

(b) whether he took all such steps towards compliance with that requirement as were reasonably practicable in those circumstances,

it is for the employer to show that there were and that he did.

Textual Amendments

F21 Words in sidenote to s. 189 omitted (26.10.1995) by virtue of S.I. 1995/2587, reg. 4(5)

F22 S. 189(1) substituted (28.7.1999 subject to reg. 2(2) of the commencing S.I.) by S.I. 1999/1925, regs. 2(2), 5(1)(2)

F23 S. 189(1A)(1B) inserted (28.7.1999 subject to reg. 2(2) of the commencing S.I.) by S.I. 1999/1925, regs. 2(2), 5(1)(3)

F24 Words in s. 189(4) omitted (28.7.1999 subject to reg. 2(2) of commencing S.I.) by virute of S.I. 1999/1925, regs. 2(2), 5(1)(4)

F25 Words in s. 189(5)(a) substituted (26.10.1995) by S.I. 1995/2587, reg. 4(4)(a)

F26 Word in s. 189(5)(b) substituted (26.10.1995) by S.I. 1995/2587, reg. 4(4)(b)(i)

F27 Words in s. 189(5)(b) substituted (26.10.1995) by S.I. 1995/2587, reg. 4(4)(b)(ii)

F28 Words in s. 189(5)(c) substituted (26.10.1995) by S.I. 1995/2587, reg. 4(4)(c)

190 Entitlement under protective award. E+W+S

(1) Where an [F29 employment tribunal] has made a protective award, every employee of a description to which the award relates is entitled, subject to the following provisions and to section 191, to be paid remuneration by his employer for the protected period.

(2) The rate of remuneration payable is a week’s pay for each week of the period; and remuneration in respect of a period less than one week shall be calculated by reducing proportionately the amount of a week’s pay.

F30 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) An employee is not entitled to remuneration under a protective award in respect of a period during which he is employed by the employer unless he would be entitled to be paid by the employer in respect of that period—

(a) by virtue of his contract of employment, or

(b) by virtue of [F31 sections 87 to 91 of the Employment Rights Act 1996] (rights of employee in period of notice),

if that period fell within the period of notice required to be given by [F32 section 86(1)] of that Act.

(5) [F33 Chapter II of Part XIV of the Employment Rights Act 1996] applies with respect to the calculation of a week’s pay for the purposes of this section.

The calculation date for the purposes of [F34 that Chapter] is the date on which the protective award was made or, in the case of an employee who was dismissed before the date on which the protective award was made, the date which by virtue of [F35 section 226(5)] is the calculation date for the purpose of computing the amount of a redundancy payment in relation to that dismissal (whether or not the employee concerned is entitled to any such payment).

(6) If an employee of a description to which a protective award relates dies during the protected period, the award has effect in his case as if the protected period ended on his death.

Textual Amendments

F29 Words in s. 190(1) substituted (1.8.1998) by 1998 c. 8, s. 1(2)(a) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1

F30 S. 190(3) repealed (30.8.1993) by 1993 c. 19, ss. 34(3), 51, Sch. 10

F31 Words in s. 190(4) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 56(14)(a)(i) (with ss. 191-195, 202)

F32 Words in s. 190(4) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 56(14)(a)(ii) (with ss. 191-195, 202)

F33 Words in s. 190(5) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 56(b)(i) (with ss. 191-195, 202)

F34 Words in s. 190(5) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 56(b)(ii) (with ss. 191-195, 202)

F35 Words in s. 190(5) substituted (22.8.1996) by 1996 c. 18, ss. 240, 243, Sch. 1 para. 56(b)(iii) (with ss. 191-195, 202)

191 Termination of employment during protected period. E+W+S

(1) Where the employee is employed by the employer during the protected period and—

(a) he is fairly dismissed by his employer [F36 otherwise than as redundant], or

(b) he unreasonably terminates the contract of employment,

then, subject to the following provisions, he is not entitled to remuneration under the protective award in respect of any period during which but for that dismissal or termination he would have been employed.

(2) If an employer makes an employee an offer (whether in writing or not and whether before or after the ending of his employment under the previous contract) to renew his contract of employment, or to re-engage him under a new contract, so that the renewal or re-engagement would take effect before or during the protected period, and either—

(a) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed, and as to the other terms and conditions of his employment, would not differ from the corresponding provisions of the previous contract, or

(b) the offer constitutes an offer of suitable employment in relation to the employee,

the following subsections have effect.

(3) If the employee unreasonably refuses the offer, he is not entitled to remuneration under the protective award in respect of a period during which but for that refusal he would have been employed.

(4) If the employee’s contract of employment is renewed, or he is re-engaged under a new contract of employment, in pursuance of such an offer as is referred to in subsection (2)(b), there shall be a trial period in relation to the contract as renewed, or the new contract (whether or not there has been a previous trial period under this section).

(5) The trial period begins with the ending of his employment under the previous contract and ends with the expiration of the period of four weeks beginning with the date on which the he starts work under the contract as renewed, or the new contract, or such longer period as may be agreed in accordance with subsection (6) for the purpose of retraining the employee for employment under that contract.

(6) Any such agreement—

(a) shall be made between the employer and the employee or his representative before the employee starts work under the contract as renewed or, as the case may be, the new contract,

(b) shall be in writing,

(c) shall specify the date of the end of the trial period, and

(d) shall specify the terms and conditions of employment which will apply in the employee’s case after the end of that period.

(7) If during the trial period—

(a) the employee, for whatever reason, terminates the contract, or gives notice to terminate it and the contract is thereafter, in consequence, terminated, or

(b) the employer, for a reason connected with or arising out of the change to the renewed, or new, employment, terminates the contract, or gives notice to terminate it and the contract is thereafter, in consequence, terminated,

the employee remains entitled under the protective award unless, in a case falling within paragraph (a), he acted unreasonably in terminating or giving notice to terminate the contract.

Textual Amendments

F36 Words in s. 191(1)(a) substituted (30.8.1993) by 1993 c. 19, s. 49(2), Sch. 8 para.70; S.I. 1993/1908, art. 2(1), Sch. 1

192 Complaint by employee to [F37 employment tribunal]. E+W+S

(1) An employee may present a complaint to an [F37 employment tribunal] on the ground that he is an employee of a description to which a protective award relates and that his employer has failed, wholly or in part, to pay him remuneration under the award.

(2) An [F37 employment tribunal] shall not entertain a complaint under this section unless it is presented to the tribunal—

(a) before the end of the period of three months beginning with the day (or, if the complaint relates to more than one day, the last of the days) in respect of which the complaint is made of failure to pay remuneration, or

(b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months, within such further period as it may consider reasonable.

(3) Where the tribunal finds a complaint under this section well-founded it shall order the employer to pay the complainant the amount of remuneration which it finds is due to him.

(4) The remedy of an employee for infringement of his right to remuneration under a protective award is by way of complaint under this section, and not otherwise.

Textual Amendments

F37 Words in s. 192 substituted (1.8.1998) by 1998 c. 8, s. 1(2) (with s. 16(2)); S.I. 1998/1658, art. 2(1), Sch. 1