Redundancy Consultation Rights – What Your Employer Must Do

Being told your job is at risk is unsettling enough. Understanding what your employer was legally required to do — and whether they did it — can make a significant difference to your financial outcome. This guide explains the rules, the timelines, and what you can do if your employer cut corners.

The key point upfront: consultation is not a formality. Your employer must approach it with a genuinely open mind, give you real information, and consider what you say before making any final decision. Telling you the outcome before consultation has even started may itself render your dismissal unfair.

The Two Layers of Consultation

Redundancy consultation operates on two distinct levels that run alongside each other. Both must be followed — collective consultation is not a substitute for individual consultation, and vice versa.

When Do Collective Consultation Rules Apply?

Collective consultation rules under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) are triggered whenever an employer proposes to dismiss 20 or more employees as redundant at one establishment within any 90-day period.

"Establishment" means the distinct site or place of business — not the company as a whole if it operates multiple sites. So if a company proposes 15 redundancies at its London office and 10 at its Manchester office simultaneously, each site is assessed separately; collective consultation applies to neither.

The 90-day window matters. If an employer makes 18 redundancies in January and a further 6 in March of the same year at the same site, the total of 24 within 90 days triggers collective consultation — even if each individual round was below 20.

The Minimum Consultation Periods

Where collective consultation applies, the employer cannot issue any dismissal notices until the relevant minimum period has elapsed from the start of consultation:

The minimum period is measured in calendar days — not working days. It runs from the date consultation formally begins (the date the s.188 notice is given to representatives) to the date the first dismissal takes effect. Redundancy notices cannot take effect before this period has elapsed.

Importantly, the clock starts when genuine consultation begins — not when the employer first mentions redundancy might be coming. Sending an email that says "we may need to make cuts" does not start the clock. The clock starts when formal s.188 written information is provided to representatives and consultation actually begins.

Who Must the Employer Consult With?

The employer must conduct collective consultation with:

• A recognised trade union if one is recognised at the establishment, or
• Elected employee representatives if no recognised union exists

The employer must take reasonable steps to facilitate elections for employee representatives if none exist. This means actively organising a proper election — not simply announcing that employees can put themselves forward and then proceeding when no one does.

If employees are genuinely given the opportunity to elect representatives and decline to do so — despite the employer making reasonable efforts — the employer may need to consult individually with each affected employee instead. However, this is a narrow exception and employers cannot engineer a situation where employees have no meaningful opportunity to elect representatives.

The s.188 Written Information

At the start of collective consultation, the employer must provide representatives with specific written information under s.188 TULRCA 1992. This is sometimes called the "s.188 notice" or "Section 188 letter". It must include:

• The reasons for the proposed redundancies
• The number and description of roles proposed for redundancy
• The total number of employees of those descriptions employed at the establishment
• The proposed method of selecting employees who will be dismissed
• The procedure and timetable the employer intends to follow
• The method for calculating any non-statutory redundancy payments (if enhanced payments are offered)

Providing incomplete information — or providing it after consultation has already started — is a breach of s.188 and can strengthen a protective award claim. Representatives cannot meaningfully consult without this information, which is precisely why the law requires it upfront.

What Must Consultation Actually Cover?

Collective consultation must be undertaken "with a view to reaching agreement" on ways to avoid the dismissals, reduce the numbers affected, and mitigate the consequences. The employer must genuinely consider the representatives' input and respond to any counter-proposals — it cannot simply present a fait accompli.

Topics that must be available for discussion include:

• Whether redundancies can be avoided entirely (e.g. by cutting hours, freezing recruitment, voluntary redundancy)
• Whether the number of redundancies can be reduced
• Whether the selection pool is appropriately defined
• Whether the selection criteria are objective and fairly applied
• Whether the proposed timeline is reasonable

The HR1 Government Notification

Where 20 or more redundancies are proposed at one establishment within 90 days, the employer must also notify the Secretary of State (the Department for Business and Trade — formerly BEIS) by completing form HR1. The deadlines mirror the consultation periods:

Failure to file HR1 is a criminal offence under s.194 TULRCA 1992, punishable by an unlimited fine on the employer. Employees do not receive additional compensation for an HR1 failure, but it is relevant where the employer is insolvent — the government needs the notification to prepare for potential National Insurance Fund claims.

Individual Consultation — What You Are Entitled To

Every employee at risk of redundancy must be consulted individually, regardless of whether collective consultation also applied. Individual consultation must be meaningful — it is not satisfied by a brief meeting that was clearly going to end with a dismissal regardless of what you said.

The key elements of individual consultation are:

• You must be told your role is at risk and why before any decision is made
• You must be given an opportunity to put forward alternatives — including why you should be retained
• The employer must genuinely consider what you say before making a final decision
• You must be told how you were selected and given the opportunity to challenge this
• You must be told what suitable alternative employment options, if any, exist
• You have the right to be accompanied by a colleague or trade union representative at any formal meeting

The number of individual consultation meetings required will depend on the circumstances. For straightforward cases, one or two meetings may suffice. For more complex situations — particularly where you raise substantive challenges — more meetings may be needed before a fair process is completed.

Selection Criteria — What Counts as Fair?

Where a selection pool exists (i.e. you were not the only person doing your role), the employer must apply objective, fair selection criteria. There is no legal requirement to use any particular criteria, but they must be capable of objective application and applied consistently.

Common objective criteria include: skills and qualifications, performance and appraisal scores, attendance and disciplinary records, and flexibility. Subjective criteria such as "attitude" or "management impression" are harder to defend at tribunal but are not automatically unfair — provided they are genuinely and consistently applied.

You are entitled to see your scores if you ask. If you believe you were scored unfairly, you should raise this during individual consultation and ask for the scoring to be reviewed.

Watch out for selection criteria that may be indirectly discriminatory. For example, criteria that disproportionately affect part-time workers may be indirectly discriminatory on grounds of sex. Selecting someone who is pregnant or on maternity leave is almost certainly automatically unfair.

The Protective Award — What You Can Claim

If your employer failed to comply with collective consultation obligations — whether by failing to consult at all, consulting for less than the minimum period, failing to provide the required written information, or failing to consult with proper representatives — you can claim a protective award at an employment tribunal.

The protective award is worth up to 90 days' gross pay per affected employee. There is no upper cap per day — unlike unfair dismissal, where the compensatory award is capped. If your daily gross pay is £200, the maximum award is £18,000. For higher earners, the potential award is substantial.

Tribunals typically award the full 90 days where the breach was serious — for example where there was no consultation at all. Shorter periods may be awarded for less serious breaches. The award applies to every affected employee at the establishment, not just those who bring the claim, but each employee must bring their own claim or collectively through a union.

Crucially, a protective award is entirely separate from — and additional to — any unfair dismissal compensation. You can claim both.

What If Your Employer Is Insolvent?

If your employer became insolvent and cannot pay a protective award or your redundancy pay, you can claim from the National Insurance Fund via the Insolvency Service. Protective awards paid through the NIF are subject to the same 90-day cap. Statutory redundancy pay and up to eight weeks' arrears of pay are also covered by the NIF.

Claims to the NIF for protective awards require a tribunal judgment confirming the award — so it is still necessary to bring and win the tribunal claim first.

Time Limits — Do Not Miss These

Employment tribunal claims for unfair dismissal and protective awards must be brought within 3 months minus one day of the effective date of termination. Before you can submit a tribunal claim, you must first contact Acas to begin early conciliation — this can add a few weeks to the process, so do not leave it until the last moment.

The 3-month time limit is strict. Tribunals have very limited discretion to extend it, and in most cases a late claim will be rejected outright regardless of its merits. If you are in any doubt about timing, seek advice immediately.

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Frequently Asked Questions

Can my employer start redundancies before consultation is finished?

No. Where collective consultation applies, no dismissal can take effect before the minimum protected period has elapsed. Any dismissal that takes effect before the minimum period has run is unlawful and can support a protective award claim.

What if my employer says consultation is a "sham" — how do I prove it?

A sham consultation — where the employer goes through the motions without genuinely considering alternatives — is a process failure. Evidence might include: the outcome was announced before consultation ended; management responses to proposals were dismissive and formulaic; meetings were very short; no alternatives were genuinely explored. This would typically support an unfair dismissal claim rather than a protective award, as the collective process may still have technically run for the required number of days.

Does individual consultation apply if I'm in my probationary period?

Individual consultation is good practice regardless. However, the right to claim unfair dismissal normally requires 2 years' continuous employment. Employees with less than 2 years' service can generally be dismissed without the full process, though the right to statutory redundancy pay also requires 2 years' service.

Can I claim a protective award even if I accepted a settlement?

Not usually. A settlement agreement signed with proper legal advice typically waives your right to a protective award. However, the settlement must specifically waive the protective award claim, and you must have received independent legal advice for the waiver to be valid. If the settlement was signed before you knew about the collective consultation failures, a solicitor may be able to advise on whether it can be challenged.

What if I was put in voluntary redundancy — do consultation rules still apply?

Yes. Voluntary redundancy schemes do not remove collective consultation obligations. If 20 or more employees are proposed for redundancy, the rules apply regardless of whether redundancies are compulsory or voluntary.

Summary

• Collective consultation applies when 20 or more employees are proposed for redundancy at one establishment within 90 days
• The minimum period is 30 days for 20–99 redundancies, and 45 days for 100 or more
• Consultation must be with a recognised trade union or elected employee representatives
• The employer must provide specific written s.188 information before consultation can lawfully begin
• The employer must also notify the government (HR1 form) — failure is a criminal offence
• Individual consultation is required for every redundancy, regardless of the total number
• Breaching collective consultation entitles employees to a protective award of up to 90 days' gross pay — with no upper cap
• Claims must be brought within 3 months minus one day of the dismissal — do not delay
• Use the Redundancy Consultation Checker → to see whether your employer followed the correct process