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Covid 19 and Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA)

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The Government announced the Coronavirus Job Retention Scheme on 20 March 2020, which provides for grants of 80% of an employee’s salary up to a maximum of £2,500 per month in circumstances where otherwise the employee could expect to be laid-off due to a downturn in work.

However, many employers are still considering large scale redundancies. When doing so, employers need to be mindful of the requirements of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

When does this act apply?

TULRCA applies where an employee is proposing to make 20 or more employees redundant in one establishment within a period of 90 days or less.

What must employers do?

Section 188 states that employers must provide information and consult the appropriate representatives of employees who may be affected, at least 30 or 45 days before the first dismissal takes effect (depending on the number of proposed redundancies).

What are the consequences of not following section 188?

Employees (and ex-employees) may bring a complaint or claim to the employment tribunal under section 189 TULRCA and employers may be liable to make payments (protective awards of up to 90 days’ pay each). 

Is there a defence for failure to comply

Section 188(7) TULRCA provides a defence for failure to comply with the some of the requirements of section 188.   However, this section is complicated, and employers need to be careful that they make all efforts to comply.

To satisfy section 188(7), employers must show that there were ‘special circumstances’ which rendered it ‘not reasonably practicable’ to comply with the requirements of the act. There is no definitive definition of ‘special circumstances’ and it will largely depend on the specific facts and circumstances surrounding each individual case.

How will Covid-19 impact this?

Employers might think that Covid-19 automatically amounts to ‘special circumstances’ but, although these are unprecedented times, this might not necessarily be the case. In considering whether section 188(7) has been satisfied, tribunals will likely look at what circumstances Covid-19 brought to the employer that meant that it was not reasonably practicable for that employer to comply with the requirements of section 188. In particular, an employer will need to have considered and be able to explain why the Job Retention Scheme could not apply to their particular circumstances to prevent redundancies.

Even if redundancies are appropriate and the full requirements of section 188 cannot be met, employers should use reasonable endeavours to undertake as much consultation and provide as much information as is practicable.

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