Consultation is not a procedural courtesy. It is a legal requirement. The obligation derives from the Employment Rights Act 1996 and, where collective redundancies are proposed, the Trade Union and Labour Relations (Consolidation) Act 1992. An employer who bypasses it — or performs it in name only — is exposed to claims of unfair dismissal.
The purpose of consultation is to explore ways of avoiding redundancy, reducing the number of employees affected, and mitigating the consequences. These are not aspirational objectives. They are the statutory test. If none of them were genuinely considered, the process was not lawful.
What Consultation Means
Consultation must begin at a point when proposals are still provisional. Your employer must have an open mind about the outcome. Where a decision to make redundancies has already been taken at board level and the consultation is a notification exercise dressed as a process, that is not consultation in any legally meaningful sense.
Your employer is required to disclose to you — in writing — the reasons for the proposed redundancies, the selection pool, the selection criteria being used, and the proposed method of carrying out the redundancies, including the timetable. This information enables you to respond substantively. Without it, you cannot consult; you can only be informed.
You have the right to make representations — to challenge the selection criteria, to propose alternative ways of achieving the cost reduction, to question the pool of employees considered. Your employer is required to consider those representations and respond to them. A genuine response does not mean acceptance; it means genuine engagement. A response that amounts to "noted, decision unchanged" without explanation is a signal the process may be defective.
Individual Consultation
Where fewer than 20 redundancies are proposed, no minimum consultation period is prescribed by statute. However, the absence of a minimum period does not mean consultation can be perfunctory. Tribunals assess adequacy on the specific facts: the complexity of the situation, the number of meetings held, the time given to respond, and whether representations were genuinely considered.
A typical individual consultation sequence involves an at-risk notification letter, one or more consultation meetings, a period in which you can raise alternatives or challenge the selection, and a written outcome letter confirming or withdrawing the redundancy proposal. The number of meetings is not itself the test. What matters is whether a reasonable employer in those circumstances would have done more.
You are entitled to request copies of all documents relevant to your selection — including the scoring matrix if one was used. If your employer declines to provide this, that refusal is itself material to any subsequent tribunal claim.
Collective Consultation
Where an employer proposes to dismiss 20 or more employees as redundant within a period of 90 days or fewer at a single establishment, collective consultation obligations are triggered. These apply on top of the individual consultation obligations — not instead of them. The employer must also notify the Secretary of State using an HR1 form before the consultation period begins. Failure to do so is a criminal offence.
Collective consultation must be conducted with appropriate representatives — either trade union representatives where a recognised union exists, or elected employee representatives where one does not. The consultation must begin in good time and address the same statutory matters: ways of avoiding the redundancies, reducing the numbers affected, and mitigating the consequences.
| Proposed redundancies | Minimum consultation period |
|---|---|
| 20 to 99 in 90 days | 30 days before first dismissal takes effect |
| 100 or more in 90 days | 45 days before first dismissal takes effect |
What a Fair Process Looks Like
A fair consultation process is documented throughout. Every meeting is confirmed in writing, with a summary of what was discussed and any representations made. Response times are reasonable — typically a minimum of one week between an at-risk letter and the first meeting, and time between meetings to prepare a substantive response.
The selection criteria applied to determine who is at risk must be objective and capable of being applied consistently. Common criteria include skills and qualifications, performance records, attendance, and disciplinary history. Criteria that cannot be evidenced — such as "attitude" or "fit" without supporting documentation — are vulnerable to challenge.
Where the pool of employees at risk has been defined narrowly, that definition must be justified. An employer who places only one employee in a pool of one, while others doing comparable work are not considered, must be able to explain why the pool was drawn that way. A pool designed to reach a predetermined outcome is not a lawful pool.
Alternatives to redundancy should be actively considered and the outcome documented. This includes reduced hours, voluntary redundancy, redeployment to suitable alternative roles, and temporary lay-off. If no alternatives were available, the employer should be able to say why — not simply assert it.
Red Flags
The following are indicators that a consultation process may be legally defective. They are not individually conclusive, but each warrants scrutiny. A decision communicated as final before any consultation meeting has taken place is not consistent with a genuine process. A selection pool that contains only you — when others perform equivalent work — requires explanation.
No written at-risk notification before the first meeting; no documentation of what was discussed; no written response to representations you made; selection criteria disclosed only after the outcome has been communicated — each of these points to a process constructed around a decision already taken. An employer who cannot produce the selection scoring matrix on request is unlikely to have applied one fairly.
The timetable is also material. Consultation conducted over three days for a long-serving employee in a complex role will receive different scrutiny to the same period for a junior role in a straightforward situation. If the process felt rushed, that is worth examining — and documenting.
Your Right to Be Accompanied
You have a statutory right to be accompanied at any formal consultation meeting. Your companion may be a trade union representative — whether or not your employer recognises that union — or a fellow worker employed by the same employer. They may not be an external friend, a solicitor, or a family member unless your employer agrees to this as a matter of discretion.
Your companion may address the meeting on your behalf, put your case, and respond to any view expressed. They may not answer questions directed to you unless you ask them to, and they cannot obstruct the meeting. If your employer refuses to allow a companion to attend, this is a breach of statutory rights and is relevant to the fairness of any subsequent dismissal.
If a settlement agreement is offered as part of or at the conclusion of the consultation process, read Settlement Agreements before responding. If the outcome is a confirmed redundancy and you believe the process was defective, Appeals sets out the available grounds and the procedure for raising them.