Many managers see consultation as something that only happens in bigger organisations, where there are representatives, trade unions and legal requirements around timescales and structure. But that is not the case at all – consultation applies to all employers.
If an employer has 50 or more staff, the information and Consultation Regulations give employees the specific right to request an information and consultation agreement, and set out areas employees must be consulted on. But that doesn’t mean that only employers of that size need to consult.
Even the smallest employers have to consult employees in some circumstances, so you need to make sure you know when that is.
Health and safety
All employers must consult with staff on health and safety matters, either through representatives or directly. In a small business it is likely to be directly, and the kind of thing you should be discussing is what health and safety concerns employees may have, identifying risks in the workplace and how to address them, the risk assessment process you have, and also what training employees need or would like around health and safety.
Obviously depending on the nature of your business, the extent and subject matter of health and safety consultation will vary. In a solely office-based business, it is likely to be more ‘light touch’ than in a very industrial/manual business.
In bigger businesses, or where 20 or more employees will be made redundant at the same establishment, collective consultation applies, with specific timescales. But that doesn’t mean small employers don’t need to consult when considering making employees redundant. Even where there is only one post at risk, and perhaps not even any need for a selection process or similar, you must still consult the employee/s in question.
It is not likely to be necessary to have an extended consultation period, and this may well feel heavy-handed anyway, but you must give the employee opportunity to ask questions, make alternative suggestions and make representations about potential redundancy decisions.
If your business is being bought out, or you are transferring your whole business or part of your business to another in circumstances where the Transfer of Undertakings (Protection of Employment) Regulations apply, you will need to consult your employees on the transfer, either through representatives, or (for micro-businesses) directly.
This doesn’t mean you need employees’ agreement for the transfer to take place, but consultation must take place with a view to reaching agreement on the issues being consulted on.
Changing terms and conditions
We do sometimes come across those who believe that if sufficient notice is given, employers can just notify employees of changes to terms and conditions of employment. This is not the case. Although there are a variety of clauses you can include in your contract of employment to make future attempts to vary terms easier, you will not be able to force through an unwanted change to terms and conditions without consulting employees first.
This would need to include setting out the proposed change and business reasons for it, and allowing them to make representations/alternative suggestions to meet the business requirement in question. Consulting doesn’t mean you can then easily force a change through, but certainly any attempt to force a change would need to have included consultation to reduce the legal risks involved.
If you aren’t sure whether something you’re planning comes under any of the above categories, or want some help consulting employees, do get in touch.