by Laurie Anstis on January 6, 2011
Section 188(4) of the Trade Union and Labour Relations (Consolidation) Act 1992 sets out in sub-paragraphs (a) to (f) the requirements for the information to be given to “appropriate representatives” in the context of collective redundancy consultation.
This will be familiar to all employment lawyers, and includes such matters as the number of employees proposed (or perhaps contemplated?) to be made redundant, the selection method and the way in which redundancy payments will be calculated. According to the government’s statute law database the most recent amendment to the list was in 1993.
I was surprised to see in Blackstone’s Employment Statutes (the standard statute book for the CIPD employment law course that I teach on) for 2010/11 an additional (g) – (i), which required the following additional information to be given to the “appropriate representatives”:
“(g) the number of agency workers working temporarily for and under the supervision and direction of the employer,
(h) the parts of the employer’s undertaking in which those agency workers are working, and
(i) the type work those of agency workers are carrying out.”
It is hard to see the response of the “appropriate representatives” to that information as being anything other than an invitation to the employer to get rid of the agency workers and redeploy employees at risk of redundancy to fill the roles left by agency workers. In accordance with s188(2)(a) the employer must at least give consideration to this if it is suggested by the “appropriate representatives”.
Further research showed that these additions derive from Schedule 2 of the Agency Workers Regulations 2010, which are not due to come into force until 1 October 2011. Blackstone’s has jumped the gun, but the provisions still seem curious. They must be derived from Article 8 of the Agency Workers Directive:
“… the user undertaking must provide suitable information on the use of temporary agency workers when providing information on the employment situation in that undertaking to bodies representing workers set up in accordance with national and Community legislation.”
It must be correct that this includes collective redundancy consultation – but it is odd that a directive which has as part of its purposes the establishment of a “protective framework for agency workers” (recital 12) might in this case make them more vulnerable to the termination of their contracts.