Information and consultation

01 May 2015

Updated May 2015

Gives introductory guidance on the law relating to employee information and consultation. Covers the general framework set out in the legislation, consultation for individual redundancies, collective redundancies and transfer of undertakings (TUPE), health and safety, transnational information and consultation, and the consolidation of three EU Directives.

There are five pieces of legislation governing an employer’s obligation to inform and consult with their employees on a collective basis. 

  • The Employees (Provision of Information and Consultation) Act as amended
  • The Protection of Employment Act 1977-2014
  • The Protection of Employees (Transfer of Undertakings) Regulations 2003 as amended
  • The Safety, Health and Welfare at Work Acts 2005-2014
  • The Transnational (Provision of Information and Consultation of Employees) Act as amended

The Employees (Provision of Information and Consultation) Act as amended provides a general framework for informing and consulting employees. The legislation applies to organisations with at least 50 employees. The Act provides for the setting up of information and consultation arrangements by the employer or, where the employer fails to initiate the process, at the request of at least 10% of the employees in the undertaking.

Information is defined as the transmission by the employer to one or more employees or their representatives (or both) of data, in order to enable them to acquaint themselves with the subject matter and examine it.

Consultation is defined as the exchange of views and establishment of dialogue between one or more employees or their representatives (or both) and the employer.

For more information on the implications of the Act for employers, see our factsheet on the Code of Practice on Information and Consultation.

While there is no statutory obligation to consult in an individual redundancy dismissal, the Unfair Dismissals Act provides that in determining if a dismissal is an unfair dismissal, regard may be had to the reasonableness or otherwise of the conduct of the employer in relation to the dismissal. In the light of this requirement, it is generally accepted that some sort of hearing should take place with the employee where the employer consults with them. It should be remembered that every termination of employment is considered unfair until proven otherwise. A valid economic redundancy is a fair dismissal but the burden of proof is on the employer to show: 

  • the redundancy was economically valid
  • objective criteria were applied in the decision making process
  • reasonable alternatives to redundancy were considered (such as suitable alternative employment)
  • the selection exercise was transparent, fair and reasonable

For those reasons, it is important for the employer to consult appropriately with the employees affected before making decisions on redundancy. If an employer has established procedures for redundancy selection, these should be followed unless this would mean that objective criteria were not being applied. An employer is obliged to act in a reasonable manner, which involves explaining the reasons for the redundancies and the reasons for the employees’ selection for redundancy. The obligation to act reasonably requires the employer to consider any alternative positions which might be available and also to consult with the employee about alternative positions before making the final decision.

For more information on individual redundancies, see our factsheet on redundancy.

There is a statutory obligation to consult in a collective redundancy situation. The consultation requirement is contained in section 9 of the Protection of Employment Act 1977-2014. This says that, where an employer proposes to create collective redundancies, it must, with a view to reaching an agreement, initiate consultations with employees' representatives. Section 9 also sets out some of the issues that the employer should consult on including:

  • the possibility of avoiding the proposed redundancies
  • reducing the number of employees affected by them or mitigating their consequences by recourse to accompanying social measures aimed at, for example, help with redeployment or retraining employees made redundant
  • the basis on which it will be decided which particular employees will be made redundant

In a collective redundancy situation, consultation has to be started at the earliest opportunity and at least 30 days before the first notice of dismissal is given. The obligation to consult is triggered where strategic decisions or changes in activities occur which compel the employer to contemplate or plan for redundancies.

Section 10 sets out what information the employer is obliged to give the employees’ representatives for the consultation. This must be in writing and include the following: 

  • the reasons for the proposed redundancies
  • the number and description or categories of employees who are proposed for redundancy
  • the number of employees and description or categories normally employed
  • the period during which the proposed redundancies are to be made
  • the criteria proposed for the selection of the workers to be made redundant
  • the method of calculating any redundancy payments (the basis of the calculation must be given for ex gratia payments)
  • the number (if any) of agency workers to which the Protection of Employment (Temporary Agency Work) Act 2012 applies; those parts of the business in which those agency workers are working; and the type of work that they do

An employer who fails to initiate consultations under section 9 or fails to comply with the information requirement under section 10 is guilty of an offence and liable on summary conviction to a fine of up to €5,000.

For more information on making groups of employees redundant, see our factsheet on redundancy.

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI131/2003) as amended

Both the transferor (vendor) and the transferee (purchaser) concerned in a transfer of an undertaking must inform their respective employees’ representatives affected by the transfer of: 

  • the date or proposed date of the transfer
  • the reasons for the transfer
  • the legal implications of the transfer for the employees
  • a summary of any relevant economic or social implications of the transfer for the employees 
  • any measures envisaged which would affect the employees
  • the number of agency workers temporarily engaged in the undertaking concerned; those parts of the undertaking in which they work; and the type of work they are engaged to do 

This information has to be given to the employees’ representatives at least 30 days before the transfer is carried out.

If any measures are envisaged which would affect the employees, the employer, in addition to being obliged to inform the employees, must consult with the employees’ representatives at least 30 days before the transfer is carried out. It is only if the transferor/transferee has put in place procedures to allow for the election of employee representatives and there are no employee representatives appointed after the procedures have been followed, that they can notify the employees individually rather than collectively. The consultation obligation is with the employees’ representatives and not the employees themselves. Consultation depends on there being sufficient information given to allow a dialogue to take place with a view to reaching an agreement.

For more information on transfers of undertaking, see our factsheet on the topic.

Consultation has to be undertaken before any significant workplace changes with health and safety implications can take place. This must be seen in the context of the overall objective of the Safety Health and Welfare at Work Acts 2005-2014 and the Health and Safety Authority’s position that health and safety needs to be carried out on a collaborative basis as part of the management of the business rather than as a box-ticking exercise dictated by management and imposed on staff.

Section 26 spells out in detail what employers, safety representatives or both, as appropriate, have to do. For example, they have to consult in good time and in advance regarding: 

  • any measure proposed which may substantially affect health and safety
  • the designation of employees who are required to implement emergency plans
  • activities relating to health and safety measures
  • the hazard identification and statutory risk assessment procedure
  • the preparation of the safety statement
  • the information to be given under section 9 (see below)
  • the information to be given to the Health and Safety Authority about accidents and dangerous occurrences 
  • the appointment of competent persons
  • the planning and organisation of health and safety training
  • the planning and introduction of new technologies

An employer is obliged to consider any representations made to it by its employees in relation to health, safety or welfare at work matters and, so far as is reasonably practicable, take any action that it considers necessary or appropriate with regard to those representations. An employer is obliged to give the employees involved in consultation reasonable time off from their duties, without loss of pay, to enable those employees to acquire the knowledge and skill that is necessary to discharge their function under section 26.

Under section 9, the employer is obliged to ensure that the information provided to their employees on matters relating to safety, health and welfare at work is given in a form and manner and language that is reasonably likely to be understood by the employees concerned. The information needs to include the following: 

  • the hazards to safety, health and welfare at work and the risks identified by the risk assessment
  • the protective and preventative measures to be taken concerning safety, health and welfare at work
  • the names of any persons designated under section 11 as the safety representatives

Where any employer is a community scale undertaking, it is obliged to establish a European Works Council (EWC) or other arrangement for the information and consultation of employees under the Transnational (Information and Consultation of Employees) Act as amended. A community scale undertaking is defined in the Act as meaning any undertaking with at least 1,000 employees within the EU member states, of which at least one group of 150 employees must be in at least two separate member states.

On 10 April 2015, the European Commission launched a consultation with EU level representatives of employers and employees. Closing on 30 June 2015, the consultation seeks views on the possible consolidation of Directives on collective redundancies, transfers of undertakings and a general framework for information and consultation of workers. This exercise supports the Commission's objective of improving the efficacy and consistency of EU rules in these areas.

The consultation follows the Commission's publication, in July 2013, of an evaluation of the operation of the same three Directives. In its report the Commission found that the Directives were generally relevant, effective, coherent and mutually reinforcing. However, potential areas for improvement were identified including the promotion of an information and consultation culture among employers and employees, ensuring enforcement and disseminating good practices and raising awareness.

This factsheet was written by A&L Goodbody, Solicitors, IFSC, North Wall Quay, Dublin 1.

© A&L Goodbody Solicitors. The material is not intended to provide, and does not constitute, legal or any other advice on any particular matter, and is provided for general information purposes only.