BIS CALL FOR EVIDENCE: COLLECTIVE REDUNDANCY CONSULTATION RULES

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1 BRIEFING NOTE BIS CALL FOR EVIDENCE: COLLECTIVE REDUNDANCY CONSULTATION RULES 1. Context The Government is currently reviewing the legal rules governing collective redundancy consultation (section TULRCA 1992). Although no detailed proposals for reform have been published, the BIS Call for Evidence to which responses are required by 31 January 2012 provides useful indications of the key changes being considered. The "Call for Evidence" is a precursor to formal proposals for legal change and further consultation. It creates an opportunity for employers to influence government thinking and to lobby for "business friendly" changes in this important area of employment law. The key opportunities for reform include: reducing the minimum time period between notification of proposed redundancies and the first dismissal to 30 days in all cases (rather than the 90 days currently required for 100 or more proposed redundancies) This will enable businesses to restructure more quickly, saving time and cost and avoiding uncertainty for business and employees; securing a corresponding change in the maximum protective award the "fine" imposed for breach of s188 obligations. This is currently 90 days gross pay per employee in all cases. the benefit to business would be a significant reduction in liabilities for breach; exempting fixed term contract dismissals occurring on the expiry of the fixed term from the collective redundancy consultation obligations altogether (as allowed under the Directive). For heavy users of fixed term contracts, this would remove a significant compliance burden and reduce legal exposure.; improving the interface between collective redundancy consultation and TUPE consultation, in particular to allow transferees to consult on proposed redundancies (and other measures) before the transfer, allowing these to be effected at the transfer date. Currently, the transferee can only legitimately consult when it becomes the employer, which causes delay and unnecessary cost. Pinsent Masons will be making a submission to BIS in response to this Call for Evidence and we are aware that a number of our clients intend to do so themselves. The purpose of this note is to highlight the key points we intend to make in our submission and which you may wish to include in your own response. We have not covered every question raised in the consultation, preferring to focus on the areas where we think significant beneficial change can be achieved. If you have comments on any area not covered in this note, please let us know. Where possible, we intend to say in our response that it reflects the broad position of our clients. To assist this, it would be useful if you could complete and return the feedback form sheet included at the end of this note. If you are happy to be named by us as an organisation we have consulted for the purposes of our response, then please make that clear. We would also be very happy to discuss further your responses to the call for evidence and to review your proposed submission. We are considering holding round table discussion forums or similar events in due course, once the Government has issued firm proposals for change to the current collective redundancy consultation regime, in order to help business prepare for change and to discuss the planned reforms in more detail. Please let us know if you would be interested in attending these, using the attached feedback form \CXM 1

2 2. Reducing time limits for collective consultation The key opportunity for employers from this review of collective redundancy legislation is the prospect of securing a significant reduction in the time limits that apply to collective redundancy consultations. The Government appears to favour such a reduction and achieving that change will enable employers to effect large scale redundancies more quickly, reducing costs, and so allowing business reorganisations to be implemented more quickly and with less uncertainty for the business, employees and customers. The current regime requires that minimum time periods must elapse between the start of consultation and the date of the first dismissal, as follows: 30 days if the number of proposed redundancies in any 90 day period is 20 or more, but less than 100; 90 days if the proposed number of redundancies is 100 or more in any 90 day period. Consultation itself does not have to last for the full 30 or 90 days. Employers can take a decision to proceed with the redundancies and issue notice of dismissal within the consultation period as long as the consultation process itself has been exhausted and those dismissal notices expire on or after the relevant minimum time period has expired. netheless, many employers often (unnecessarily) treat the minimum period as one which must elapse between the start of consultation and the first notice of dismissal being issued. 2.1 The Options Being Considered Many of the questions raised by BIS in their Call for Evidence concern the length of the current minimum period and the pros and cons of a number of alternative approaches. The options being considered are as follows: reducing the time limit for high impact redundancies (ie 100 or more proposed redundancies) to 30 days, 45 days or 60 days ( 19); increasing the trigger point for a longer minimum time limit to apply, ie requiring more than the current 100 redundancies to be proposed before a 90 day notification is required ( 21); introducing a more extensive series of notification periods linked to a more detailed set of thresholds set by the number of proposed redundacies ( 22); allowing the minimum time limits to be reduced by agreement with trade unions or other employee representatives (s 17 and 18). 2.2 Our preferred option - a uniform 30 day time limit in all cases 19 asks whether the 90 day time limit should be reduced to 30, 45 or 60 days. 21 asks whether the threshold for a 90 day notification period should be increased from the current 100 redundancies to a higher number. In response to 19 of the Call for Evidence, we propose to submit that the minimum time period when 100 or more redundancies are proposed should be reduced to 30 days, so that this time limit will apply to all collective redundancy cases. The same minimum period would apply regardless of the number of redundancies proposed, subject to a minimum threshold of 20 proposed dismissals. If adopted, this proposal would mean that the minimum notification period in all cases to which the collective consultation obligation applied would be 30 days between the start of consultation and the date of the first dismissal taking affect \CXM 2

3 The key legal argument for applying a 30 day time limit in all cases is that this is the minimum standard required under EU law. The underlying EU Directive which TULRCA implements does not require any period longer than 30 days. Introducing a 30 day time limit in all collective redundancy cases would be compatible with the Directive while going no further than the Directive requires. The Government has indicated a general objective to reduce the "gold plating" of EU employment law obligations in UK legislation. It would be entirely consistent with that stated objective to remove the 90 day limit and to standardise the minimum time limit at 30 days. The business advantages of reducing the current minimum time period from 90 days to 30 days would be a substantial reduction in the financial burden of the existing regime. The following rationale is relevant to question 19 and to question 16 (which asks employers to identify to the costs to business of the 90 day minimum time period over and above that associated with a 30 day period): the 90 day period imposes substantial additional employment costs (salary, benefits, NICs and other indirect costs) since the employer has to maintain employment throughout the 90 day time limit. These costs can actually mean that more redundancies are required than would be the case if a shorter time period applied; assuming that the employer is unable to lawfully issue notice of dismissal before the 90 day time limit has expired, the current 90 day limit requires the employer to incur employment costs of 9,000 employee days if 100 redundancies are proposed. Those costs would be reduced to 3,000 employee days if a 30 day time limit was applied; the current regime imposes significant costs but also does so in an arbitrary fashion. If the employer proposes 99 redundancies, compliance with the 30 day minimum time period equates to the cost of employing the average employee for 2,970 days. If one more redundancy is proposed, this cost more than triples to 9,000 employee days; the 90 day period also increases notice costs and redundancy payments in cases where the employees have accrued an additional year's service by the end of the minimum time period; having to maintain employment for 90 days rather than 30 days delays the implementation of business restructurings and therefore delays the employer's ability to reduce costs, unlock efficiency savings or achieve other commercial benefits of organisational change. these savings can protect other jobs; the 90 day time limit delays the finalisation of business plans and creates uncertainty for the business as a whole, for employees, customers and suppliers. This impacts negatively on productivity, morale and employee relations. In many significant redundancy exercises, employees actually welcome decisiveness and clarity about their individual position and find a drawn out period of consultation to be very unsettling; in our view, there is no real correlation between the length of the time needed for effective collective consultation and the number of proposed redundancies. A proposal to dismiss 100 or more employees does not in itself require more extensive consultation than a proposal to dismiss 20 or 30 employees. Indeed, if "high impact" redundancies are proposed due to serious financial pressures or because a particular site is closing, there may be few viable alternatives to the redundancies - the scope for meaningful consultation on ways of avoiding the dismissal may be very limited. In such cases, a 90 day time limit is unnecessarily long and does not materially affect the final outcome (You may wish to consider that point in response to 20) Proposed Response \CXM 3

4 For the above reasons, the current 90 day minimum time period should be reduced to 30 days. This is preferable to raising the threshold number of redundancies at which a 90 day time limit would apply. 2.3 Shortening minimum time periods by agreement with representatives s 17 and 18 seek views on the desirability or usefulness of allowing the 90 day minimum time period to be shortened by voluntary agreement between employers and employee representatives. We do not consider this to be an attractive solution to the problems outlined above. Frankly, we see little prospect of trade unions or other employee representatives voluntarily agreeing that a shorter time limit should be observed. We cannot see that the option would be used in practice and so it would offer no tangible benefits. Any such change would give trade unions a veto over the timetable for implementing redundancies. A better option would be to recognise that a 30 day minimum period for all collective redundancy proposals is just that - a minimum period and that it is open to employers to work to longer timescales if they consider it appropriate or if that is agreed with the employee representatives A framework of minimum periods allows greater flexibility for businesses to control the appropriate pace of consultation and redundancy implementation, tailoring this to their specific circumstances, and the scope and nature of the consultation required. It in no way precludes agreement with representatives to work to longer timescales and in practice would offer a better prospect for agreement on the appropriate timescale compared with allowing a legal minimum period to be reduced by agreement. A common problem related to this issue is that voluntary redundancies during the minimum time period can result in a breach of s188 - these can still be classed as dismissals, and strictly speaking any dismissal including voluntary redundancies within the minimum time period can trigger a protective award. Especially where a 90 day time limit applies, voluntary redundancies within the time limit are common - and indeed may be a solution desired by trade unions and individual employees (who may want to take a redundancy payment and take up other employment). Given the benefits of voluntary solutions to redundancy proposals, we consider there is merit in changing the rules to make clear that such voluntary dismissals should be permitted within the minimum time limit for consultation. Proposed Response That allowing the 90 day period to be reduced by agreement would be an ineffective measure. It would be better to set a minimum of 30 days, recognising that this can be extended by agreement. However, employers and employees should be free to agree voluntary redundancy exits which take effect within the minimum time limit, without creating a liability for a protective award. 2.4 Introducing a more graduated set of time limits and thresholds 22 asks for views on the advantages or disadvantages of introducing a more detailed set of graduated thresholds, under which a wider range of minimum time limits would apply to a more detailed set of thresholds re numbers of proposed redundancies. In our view this is unattractive. It would fail to achieve the cost savings for business associated with a standardisation of the time limit at 30 days. It would also increase complexity and legal uncertainty. Under the current regime, there are two key thresholds. Collective redundancy consultation obligations are triggered if 20 or more redundancies at one establishment are proposed in aggregate in any 90 day period. The 90 day time limit between consultation starting and the \CXM 4

5 first dismissal taking effect is triggered where 100 or more redundancies are proposed. Those thresholds already cause difficulties if successive redundancy proposals are made within the business, which is far from unusual in times of difficult economic and trading conditions. Employers can find themselves wrong footed if any new redundancy proposal tips them over the aggregate thresholds of 20 or 100 dismissals. These uncertainties and unexpected compliance risks would be compounded if a more graduated set of timescales was introduced with numerous trigger points. It would also increases the prospect of disputes with trade unions or employee representatives about compliance with the collective redundancy rules. Proposed Response A more graduated set of time limits and thresholds would compound existing compliance issues, increase uncertainty and promote disputes with employee representatives. Reducing the minimum time period to 30 days remains a simpler and more effective solution, in line with the desire to reduce the gold plating of UK employment law compared to EU Directives. 2.5 Related issues a reduction in the level of protected awards The Call for Evidence does not itself contain any proposal to alter the current level of protected awards. In our view, any reduction in the minimum time periods for consultation should be accompanied by a commensurate reduction in the penalties which employers face for breach of these periods. Moreover, the current regime is arbitrary and unfair, failing to differentiate between different types and degrees of breach. Under the current legislation, the maximum protective award for a failure to comply with the collective redundancy consultation obligation is 90 days' gross pay per employee. This maximum applies regardless of whether a 30 or 90 day time period applies for consultation. Case law requires tribunals to impose the maximum protective award, unless the employer can show good reason for it to be reduced. As a result, protective awards are often significant in scale and indeed are among the most significant employment law liabilities which employers can face. In our view, the Call for Evidence creates an opportunity to lobby for a significant reduction in these potential liabilities. The current framework lacks logic or coherence and creates serious anomalies: an employer proposing 100 or more redundancies could simply disregard its section 188 obligations altogether and dismiss employees without collective consultation. The cost of a protective award - 90 days' pay per employee - will be the same as the cost that would have been incurred had the employer observed the requirement to continue the employment of those employees for the 90 day minimum period; However, an employer may observe the 90 day time minimum period but breach section 188 in some other way (eg a breach of the rules on the election of employee representatives). That employer has incurred the costs of continuing employment for 90 days but also faces an additional protective award of up to 90 days' pay. The aggregate cost could be 180 day's pay per employee, twice the cost of an employer who deliberately fails to consult at all; an employer proposing 20 redundancies and who breaches section 188 faces a protective award of 90 days pay, 3 times the length of the minimum time period of 30 days. This result appears disproportionate - the aggregate cost of employing the staff for 30 days and then paying a protective award of 90 days is 120 days' pay. Proposed Response The maximum level of protective awards should be reduced in line with any changes to the minimum time period for consultation, for example to a maximum of 30 day's pay in all cases \CXM 5

6 2.6 Application of collective redundancy legislation to fixed term contract dismissals 13 calls for evidence on the problems created by the interaction of fixed term contracts with collective redundancy consultation law. The use of fixed term contracts is particularly high in certain sectors. This can create significant practical barriers to effective compliance with collective redundancy consultation obligations. We believe that as the Directive does not apply to dismissals which occur on the expiry of a fixed term contract, these should also be excluded from domestic legislation. Fixed term contracts are used for a variety of legitimate reasons - to cover temporary demands for work, staff absences/family related leave, for time limited projects and where employment is dependent on continued external funding. Employees engaged on fixed term contracts understand that there is no guarantee of continued employment on the expiry of the fixed term and that they may be dismissed at that point. Those dismissals can essentially be regarded as "business as usual" by both employer and employee. Employers with high volumes of fixed term contracts will often find themselves under a permanent and continuous legal obligation to undertake collective consultation over these "business as usual" redundancies. However, the process of consultation can be very artificial in such cases. The ability to continue employment beyond the fixed term will often be very limited, essentially depending on the availability of alternative employment in a different role or the availability of new projects or new external funding. The employee may have no real expectation or plan to stay with the employer beyond the expiry of the fixed term. The scope for detailed exploration of alternatives to dismissal is often limited, outside the direct control of the parties involved and cannot be ascertained until very close to the expiry of the fixed term contract. But consultation must begin in time for the 30 or 90 day time period to be observed. While this is possible (in terms of process rather than substance), it often results in consultation being commenced long before the employer can take a realistic position on whether the fixed term contract can be extended or renewed or whether alternative employment is available. The result is that observing the relevant time limits means that consultation takes place at a time when it is largely meaningless. It also results in employers notifying a much higher number of potential redundancies than is actually likely it is not a "proposed" number of redundancies, but rather the number of redundancies that might happen in the relevant time period. The actual probability of dismissals cannot be accurately determined at this stage. Since the reasons for dismissal relate to the circumstances of the individual contract, they do not lend themselves easily to consultation of the type required under TULRCA - i.e. with employee representatives and covering ways of avoiding the dismissals, reducing the numbers or mitigating their impact. Issues about the availability of additional work or redeployment are all matters which can be more effectively dealt with by individual consultation as part of a fair dismissal process. Collective consultation often adds little of value, if anything, to the process of individual consultation, simply duplicating process and cost. The process of consultation under s188 can be time consuming for employer and representatives, and this is significantly exacerbated if there is a continuous cycle of notifications and consultations over fixed term contract dismissals. Given that in these cases, the scope for continued employment is limited or non-existent or (e.g. in cases relying on continued external funding) dependant on factors outside the direct control of the parties, the effort is disproportionate to the value of consultation. For those reasons, in sectors such as the Higher Education sector it has been common for there to be, in effect, gentlemen's agreements between employers and representatives to ignore collective redundancy obligations a clear sign that the letter of the law is out of step with the reality on the ground. In non-unionised environments, employers face difficulties in arranging appropriate representation for consultation over the expiry of fixed term contracts. It is time consuming costly and bureaucratic to elect representatives for each series of fixed term contract dismissals \CXM 6

7 A standing body of representatives including employees on fixed term contracts is not a workable solution as these are likely to be dismissed when their contracts expire, requiring new representatives to be appointed. The alternative of a consultative body staffed by only permanent employees would be unrepresentative of the fixed term contract employees. Heavy users of fixed term contracts also experience a greater burden of collective consultation in other respects. The numbers of fixed term contract dismissals must be aggregated for the purposes of s188 with any dismissals proposed by the employer in respect of indefinite contract employees. As a result, a small number of indefinite contract dismissals (ie less than 20) can still trigger collective consultation requirements or trigger a 90 day time limit for consultation purposes because the threshold of 100 redundancies is met or exceeded. The underlying pattern of fixed term contract dismissals therefore adds to the cost for business for employers, by requiring collective consultation over indefinite contract dismissals where those obligations would not otherwise apply. Proposed Response Dismissals occurring on the expiry of fixed term contracts should be excluded altogether from the scope of collective consultation legislation. That position would be compatible with the relevant EU Directive which contains exactly that exclusion again, this is an area where UK law gold plates EU employment law obligations, causing additional costs and compliance burdens for employers. As an alternative, employers should be required only to notify trade unions (where they are recognised in respect of the relevant categories of fixed term staff) of potential dismissals, but without any actual legal requirement to consult. Employers would be free to consult on a voluntary basis but the absence of a legal requirement to consult would respect the fact that the Directive does not require such consultation and that the scope for meaningful consultation under s188 is limited in relation to fixed term contracts. 3. The Definition of "Establishment" The Call for Evidence invites employers to raise specific difficulties encountered when defining "an establishment" for the purposes of s188 obligations (s 12 and 13). The term establishment" is an important concept which governs the scope of collective consultation obligations the obligation to consult applies only where 20 or more dismissals are proposed at one establishment in a 90 day period and the threshold for the 90 day time limit also depends on whether 100 or more redundancies are proposed in aggregate at one establishment. At the heart of the difficulty in applying these rules is whether an "establishment" is defined by a geographical work location or on an organisational basis within a business, such that a business division spanning more than one location would be a single establishment. There is no definition of establishment in TULRCA or the Directive, although a case law definition has emerged particularly from the ECJ case law. The ECJ test largely focuses on geographical location but allows organisational factors to aggregate separate workplaces into a single establishment. A geographical approach does not sit easily with the structure of many organisations, especially where these are run along business division or business unit lines across multiple locations. Difficulties arise when different business divisions propose redundancies across overlapping sites - there may be 20 or more redundancies proposed at a particular site, but the proposals are made by different management groups at different points in time, each of which may have little visibility or control over the proposals made, or to be made, by other management groups. This makes compliance with s188 difficult and can lead to inadvertent breaches. This is an area where BIS may have limited room for manoeuvre, given the impact of ECJ case law. We can see that greater certainty on the approach to be taken may be welcome in \CXM 7

8 clarifying the application of the existing test. However, it would be difficult to move to a purely organisational approach under which the geographical location was ignored entirely, with the result that 20 dismissals could be proposed across a number of business divisions at the same site (even as part of a wider redundancy proposal) without triggering collective consultation. Equally, limiting the test to geographical factors so that only the specific work location was considered would be out of step with EU law, which allows organisational considerations to lead to different sites being aggregated into a single establishment. On this issue, we would be grateful for your views on the problems experienced and whether you have identified any possible solutions. Please identify any factors you think should be taken into account when defining "an establishment", for example in Guidance. 4. Overlap between TUPE and Collective Redundancy Consultation Obligations 23 asks for evidence on problems encountered in the overlap between collective redundancy consultation and the TUPE Regulations. It is not uncommon for transferees inheriting a workforce under TUPE to wish to make changes to the composition or organisation of the workforce or to terms and conditions of employment. Common scenarios include: the transferee wishes to implement redundancies or other organisational changes to save costs or achieve efficiencies; the transferee proposes to change terms and conditions by dismissal and reengagement; the transferee will employ the transferring staff but at its own work location (eg a call centre) rather than that of the transferor effectively, a "change of workplace" redundancy situation brought about by the TUPE transfer. In these cases, the transferee may well face two consultation obligations- under TUPE (as the changes are measures connected with the transfer) and under s188 (collective redundancies). A key practical problem is both cases is that the transferee cannot technically begin such consultation itself until it has actually become the employer under TUPE. If the transferee waits until the transfer to begin consultation, it faces the additional costs of continuing employment on the current basis until relevant consultation periods and notice periods have been observed. This also creates uncertainty for employees they will know that measures are proposed but face a significant delay before their representatives can actually engage with the transferee in consultation on them. The difficulties and indeed impracticalities of this situation are demonstrated in the change of workplace scenario mentioned above. Assume that a new contractor based in Glasgow takes over a contract to provide call centre services. The outgoing contractor's call centre is based in Birmingham. The contracts of employment give the place of work as Birmingham. The new contractor cannot physically continue to employ the staff in Birmingham. Taking over the contract involves a place of work redundancy in Birmingham as a measure connected with the transfer and a collective redundancy situation. The new contractor would technically be required to consult on these measures after the transfer, continuing to employ those staff in Birmingham while collective redundancy time limits were observed. But it needs employees in Glasgow and cannot physically continue employment for them in Birmingham. The logical approach would be to allow the relevant consultation to be carried out ahead of the transfer date. Under the current regime that consultation is "legally premature" and the transferee is exposed to the risk of two protective awards, one under TULRCA and another under TUPE. Proposed Response \CXM 8

9 That TUPE and s188 TULRCA should be amended to make clear that transferees can consult lawfully in advance of the transfer, so that the transferee can put new arrangements in place from the date of the transfer. What should matter here is that consultation has taken place, rather than whether the transferee was technically the employer at that time. The change would also give legal cover to good employment relations practice on the part of those transferees who already seek to engage in consultation ahead of the transfer. It would be desirable for transferors to have a legal obligation to allow the transferee access to employee representatives before the transfer. 5. Other Issues raised in the Call for Evidence 6 of the call for evidence asks whether you are aware of your obligations under the collective redundancy legislation. We believe that employers with whom we deal are generally well informed on the law in this area. If there are areas where you would welcome further guidance, please let us know. 7 asks about the advantages and disadvantages of dealing with different categories of representative - eg trade union or elected staff reps, or information and consultation bodies. We have not dealt with these issues in this paper as we see no real scope for a change in law governing the identity of the representatives who have to be consulted. If you have particular experiences to share on this issue, please feel free to let us know. s 8, 10 and 11 concern the consultation itself and how this works in practice. We have not dealt with these issues because we see no purpose in further legislative detail on how consultation should be conducted. The current law reflects the nature of consultation required under the Directive - this cannot be changed. Equally, the lack of more detailed rules allows employers good flexibility in controlling the structure and pace of consultation. However, if you have any particular views or thoughts on these issues, do let us know. 9 asks when employers can be confident that consultation is finished and redundancy notices can be issued. This is very case dependent - either employers know that consultation has reached an impasse or a natural end, or need to proceed with implementation to meet internal deadlines. Under current law, employers have flexibility here to take a considered commercial view and as long as notices expire after the minimum notification period, and consultation can be seen to have taken place, there is a good case that the duty to consult has been discharged* we do not favour introducing any statutory test for deciding when consultation is complete, as this would remove flexibility and add new compliance burdens. Let us know if you disagree. Please use the attached feedback form to give us your views on these proposals, so that we can take these into account when submitting our response to BIS. To discuss these issues or your views on the BIS Call for Evidence on collective redundancies, please contact Chris Mordue (christopher.mordue@pinsentmasons.com) or your usual Pinsent Masons contact. Pinsent Masons LLP 19 January \CXM 9

10 Please use this form to send us comments on our proposed response to BIS on their Call for Evidence of the effectiveness of TUPE. This will help us to indicate to BIS whether our proposals have the broad support of our clients and contacts. Please complete the form and send it to Chris Mordue at BIS CALL FOR EVIDENCE COLLECTIVE REDUNDANCY CONSULTATION FEEDBACK FORM Name... Job Title... Organisation... Are you happy for us to name your organisation as one whose views we have canvassed in preparing our response Would you be interested in attending round table discussions or other events, once the Government has issued further proposals for the reform of collective redundancy consultation? Do you support our proposal that the current 90 day notification period which applies when 100 or more redundancies are proposed should be reduced? Do you support a reduction to 30 days (in line with the minimum standard under the Directive) so that becomes the notification period for all proposals to make collective redundancies? \CXM 10

11 Do you prefer a reduction to 30 days in all cases, rather than the alternative of retaining a 90 day period but increasing the threshold of proposed redundancies at which the 90 day period would apply? If you prefer an increased threshold, how many proposed redundancies should trigger a 90 day notification limit? Do you agree that a provision allowing the 90 day notification period to be reduced by agreement with representatives would be unlikely to be used, because representatives would have no incentive to agree? Do you agree that a more graduated set of thresholds and time limits would create greater complexity and legal uncertainty? Do you agree that if notification periods are reduced, the length of protective awards should be correspondingly reduced? \CXM 11

12 Do you agree that it is disproportionate to have a protective award of 90 days in cases where the notification period is only 30 days? Do you agree that, in line with the Directive, employers should not have to collectively consult over dismissals that will occur on the expiry of fixed term contracts? Do you agree with the proposal that in the case of dismissals on the expiry of fixed term contracts the employer should just have to provide information to trade union representatives without being required to consult? Are there any additional problems in the interface between the collective consultation and fixed term contract dismissals other than those highlighted in our note? Would you welcome more guidance on what counts as an "establishment" when determining the scope of collective consultation obligations? \CXM 12

13 What problems have you faced in defining an establishment for these purposes? Do you agree that transferees should be permitted to conduct collective consultation and TUPE consultation before a transfer, so that changes can be lawfully made at the point of transfer? Would you welcome further guidance on any area of the collective consultation laws - if so, on what issues? Have you encountered particular advantages/disadvantages in dealing with different categories of representative? Do you agree that there is no need for detailed legal rules on how consultation should be conducted? \CXM 13

14 Are there particular problems or issues you have experienced which made consultation difficult? Do you agree that introducing a statutory test to determine when consultation has ended would introduce unnecessary new compliance burdens? Have you encountered specific problems in deciding when to move from consultation to implementation of redundancies? \CXM 14