The Protection of Employment Acts, 1977 - 2014 make it mandatory for employers proposing a collective redundancy:
- to engage in an information and consultation process with employees’ representatives and
- to notify the Minister for Employment Affairs and Social Protection of the proposed collective redundancy.
An employer is prohibited from issuing any notice of redundancy during the mandatory employee information and consultation period (required by the l977 Act) and until 30 days have elapsed from the date on which the Minister has been notified. An attempt to effect collective redundancies in that period will be an offence and render the employer liable to a fine of €3,000, unless the employer can show substantial business reasons for non-compliance, e.g. bankruptcy, insolvency or court order.
For the avoidance of doubt, the 30 day mandatory information and consultation process and the aforementioned 30 day period from the date of notification to the Minister may run concurrently. However, since it will not be possible to complete the notification to the Minister until the identity of the employees’ representatives for the purpose of the information and consultation process has been established, it is conceivable that both periods may not be entirely concurrent in situations where the employer does not ordinarily engage in collective bargaining, does not have an employee representative forum and delays in facilitating the selection/election of employee representatives for the purposes of complying with the provisions of the Acts.
What constitutes a Collective redundancy?
‘Collective redundancy’ is the making redundant within a period of 30 consecutive days, of a minimum number of employees, that minimum varying with the normal size of the establishment’s workforce. The relevant minimum number of proposed redundancies vis-à-vis the size of the overall workforce is as follows:
- 5 employees in an establishment employing 21-49 employees
- 10 employees in an establishment normally employing 50-99 employees
- 10% of employees in an establishment normally employing 100-299 employees, or
- 30 employees in an establishment normally employing 300 or more employees
In computing the number employed in an establishment, look at the average number employed in each of the 12 months preceding the date on which the first dismissal takes effect.
What are the obligations to enter consultation with employees?
Section 9 of the 1977 Act requires employers to engage in a consultation process with the relevant employee representatives, ‘with a view to reaching an agreement’. Similar wording in the equivalent UK legislation has been judicially interpreted as requiring the employer to allow the employee representatives adequate opportunity to consider the employer’s proposals and the information given under the various headings outlined above, and to make constructive proposals in response thereto. The employer’s obligation in this regard does not extend beyond giving the representatives reasonable opportunity to revert with their proposals having had an opportunity to consider the employer’s initial proposals.
"The essential point to my mind is that the consultation must be one where if they wish to do so workers' representatives can make constructive proposals and have time in which to do so." (Blackburne J in Griffin v South West Water Services Ltd  IRLR 15)
Information and Consultation Process with Employees’ Representatives
There must be an information and consultation process with employees’ representatives commencing not later than 30 days before any individual notice of dismissal is issued.
The consultation with the employee representatives and the notification period for the Minister can run concurrently. It is an offence for an employer to issue notice of redundancy to any employees during the 30 day period of consultation with employee representatives. An employer found guilty on indictment shall be liable to a maximum fine of €250,000.
‘Employees’ Representatives’ are defined as:
- A trade union, staff association or excepted body with which it has been the practice of the employer to conduct collective bargaining negotiations, or
- In the absence of such a trade union, staff association or excepted body, a person or persons chosen (under an arrangement put in place by the employer) by such employees from amongst their number to represent them in negotiations with the employer.
In the course of the information and consultation process, the employer is expected to provide the following information in writing to the employees’ representatives:
- Reasons for the proposed redundancies
- Number, and description or categories, of employees whom it is proposed to make redundant
- Number, and description or categories, of employees normally employed
- The period over which it is proposed to implement the redundancies
- The criteria for the selection of workers to be made redundant
- If there is to be a payment other than the statutory redundancy payment, the method of calculating such payment must be set out.
Copies of all information in relation to the above, supplied to the employees’ representatives, must be sent to the Minister ‘as soon as possible’.
No Individual notice of redundancy may issue until at least 30 days after notification of the proposed redundancy has been received by the Minister. Notification should be sent by registered post or by hand. Notification should include the following:
- Name/address of the employer, stating whether employer is a company, partnership or sole trader
- Address of the establishment where the collective redundancies are proposed
- Total number of persons normally employed there
- The number/categories of employees whom it is proposed to make redundant
- The period over which it is proposed to implement the collective redundancies
- The reasons for the proposed collective redundancies
- Names/addresses of the trade unions/staff associations representing employees affected by the proposed redundancies
- Details of the consultations with each trade union (commencement date; progress made etc.)
Records should be kept by an employer for 3 years. The Minister may initiate a prosecution for an offence within one year of the date of an alleged offence under the Act.
The Protection of Employment (Exceptional Collective Redundancies) Act, 2007 provides for the insertion of a new Section 16(2) into the Protection of Employment Act, 1977 to give effect to a judgement of the European Court of Justice (Junk v Kuhnel - Case C-188/03). The new subsection makes it an offence for an employer to issue notice of redundancy to any employees during the 30 day period of consultation with employees representatives provided for in Section 9(3) of the 1977 Act. An employer found guilty on indictment of a breach of Section 16(2) shall be liable to a maximum fine of €250,000.
The Act applies to all persons in employment in an establishment normally employing more than 20 persons.
The Protection of Employment (Exceptional Collective Redundancies) Act, 2007 does not apply to:
- Employees engaged under a contract for a fixed term or for a specified purpose except where the collective redundancies are effected before the completion of such term or purpose
- State employees other than designated industrial grades
- Local Authority officers
Making a Complaint regarding Collective Redundancy issues
An employee, or a trade union, staff association or excepted body on behalf of an employee, may present a complaint to the Workplace Relations Commission that an employer has contravened Section 9 or 10 of the Act of 1977 in relation to information and consultation of employees.
A complaint to the Workplace Relations Commission may be made by completing the Online Complaint Form available on the How to Make a Complaint/Refer a Dispute page on this website. The Workplace Relations Commission (WRC), on receipt of a complaint, will send a copy of the complaint to the employer. A WRC Adjudication Officer will then give the parties an opportunity to be heard by him/her and to present any evidence relevant to the complaint. After hearing the parties, the Adjudication Officer will issue a written decision. Proceedings before a WRC Adjudication Officer will be held in private.
The decision of the Adjudication Officer shall do one or more of the following: -
- declare that the complaint is or, as the case may be, is not well-founded,
- require the employer to comply with the provisions of the Act and, for that purpose, to take a specific course of action,
- require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.
The complaint to the Workplace Relations Commission must be presented within 6 months of the occurrence of the alleged contravention to which it relates, or, where the Adjudication Officer is satisfied that exceptional circumstances existed which prevented the presentation of the complaint within that period, within a further 6 months.
A party concerned may appeal to the Labour Court from a decision of an Adjudication Officer. The appeal must be made within 6 weeks of the date on which the Adjudication Officer communicated the decision to the parties. An appeal may be made, by giving notice of the appeal in writing, to the Labour Court and the Court will copy the notice to the other party concerned. The Court will give the parties an opportunity to be heard and to present any evidence relevant to the appeal. The Court will then issue a written determination, which may affirm, vary, or set aside the decision of the Adjudication Officer.
A party to proceedings before the Labour Court may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive.
Where an employer has neither implemented nor appealed the Adjudication Officer's decision within a period of 56 days from the date on which the notice in writing of the decision was given to the parties, the employee may complain to the District Court. The employee must notify the Court in writing of the complaint. In such circumstances, the Court is empowered to issue an Order without rehearing the case directing the employer to carry out the decision in accordance with its terms.
Copies of the relevant legislation may be viewed or downloaded on the links below -