Obligation to Consult Applies to Voluntary Dismissals in a Collective Redundancy Situation

When deciding whether the obligation to consult with employee representatives is triggered in the context of a collective redundancy situation, the Employment Appeals Tribunal (EAT) has held in Optare Group v Transport & General Workers' Union UKEAT/0143/07, that volunteers are included as part of the total number of employees who are to be considered for redundancy.

In a situation where 20 or more employees are to be made redundant within 90 days, an employer has an obligation to consult with employee representatives in advance. In Optare Group v Transport & General Workers' Union, the union was informed that 17 employees had been chosen for compulsory redundancy. In addition, the employer also accepted the voluntary redundancies of 3 employees. The employer argued that under these circumstances, the statutory obligation to consult did not apply as the volunteers did not count as part of the total number of employees required to trigger the statutory obligation.

The EAT has held that where a redundancy exercise is being carried out by an employer, employees who volunteer to be dismissed are to be treated as being in the same pool as those employees who are to be compulsorily dismissed by reason of redundancy. Therefore, the statutory obligation to consult will apply.