If we cast our minds back to the 18 December 2012, our hazy memories are likely to revolve around an eagerness to clear the desk ahead of the festive season but there will be a small number who will vaguely recall some Government pronouncement about reducing the current 90 day minimum consultation period before very large scale redundancies can take place to 45 days. The finer details, e.g. that the changes were to be made through secondary legislation and were expected to be made by 6 April 2013, may not have survived a recollection dulled by the intervening Festive Season.
However, as the 6 April 2013 approaches, big businesses are starting to query whether they can be certain the Government will have drafted the required Regulations to give legal effect to its proposals by that date. Nothing much has been heard of it since. Was the announcement just another sound-bite or a serious statement of intent?
In fact it is a topic worthy of consideration in many public sector organisations. The Manchester Evening News has reported that Manchester Council is considering compulsory redundancies for the first time since being hit by Government austerity measures. Much may hang on that revision coming into force on schedule.
In search of some clarity we spoke with the Policy Lead for Collective Employment Rights at the Department for Business Innovation and Skills earlier this month, who confirmed to us it was her belief and expectation that the changes to the minimum consultation period would indeed still come into effect on the 6 April 2013.
The Department for Business, Innovation and Skills has now quietly published the draft Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013. These draft Regulations shorten the consultation period for proposals to make more than 100 people redundant from 90 days to 45 days, and bring fixed-term employees into the headcount only if the proposal is to dismiss them for redundancy before the end of the fixed term. In other words, if the proposal is to let the fixed term expire and then simply not renew or replace it, the employee is not included in the 20 or 100 people thresholds as the case may be. The trigger date for the new period is when the proposal to make 100+ people redundant occurs on or after 6th April 2013, not when the dismissals themselves take effect.
Therefore, by way of update the Government appears to be getting on with the job, and businesses should plan for and expect the changes to collective redundancy rules to take legal effect on the 6 April 2013. The question then will be whether the change will help those already considering redundancies, like Manchester Council, since it is arguable that it is already past the point where redundancies are contemplated. One can foresee another round of Tribunal litigation surrounding the precise point where “consideration” slips into “proposing” and whether that point fell before or after 6 April.