What consultation is required when introducing new policies or procedures?

Posted in : Seamus Says - Employment Law Discussion on 13 December 2017
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Q. When introducing new policies or procedures e.g. disciplinary or grievance procedures, how much consultation or notice is required? And also, do you have to red-circle any previous practices if they were more beneficial than the terms of the new policies or procedures?

Scott: Okay. We're going to move on to changing policies and procedures. The question here is if bringing in a new policies or procedures, for example, disciplinary or grievance procedures, etc. how much consultation or notice is required? And also, do you have to red-circle any previous practices if they were more beneficial than the terms of the new policies or procedures?

Seamus: My view tends to always be whenever you're consulting with employees that if you're making any proposed changes and whether those are changes to the terms and conditions or to policies or procedures, that you're best to take a sort of open and transparent approach with them. Just to mention briefly, that there is a bit of a distinction between the terms and conditions in the contract and what might be perceived than just to be policies and procedures within the staff handbook.

But either way, the best approach is to consult. Labour relations, they have to have a very good guidance in relations to your amendment of terms and conditions. And here we're talking about specifically, I think, about policies and procedures. So, my view tends to be that there can be a number of reasons why we want to make amendments.

It could be that there's just an update in legislation and we have to amend or it could be that we've had a chippy employee coming across and we want to realign contracts after a period of time. And so the various reasons for it. The best way is always to open up the consultation I think in terms of the specific question here is in two parts. One is about the length of time that you have to consult for.

There's no strict period set out within the legislation or within any of the statutory guidance that we have to say that it has to be for a certain period of time. But there are a number of factors that I think that you need to consider about your period of consultation. And it could be, you need to look at the number of employees that you're talking about here. How many employees are going to be affected? You need to look at the seriousness and the impact of the amendments that are proposed.

If it's just a short change in one paragraph and agreement, it might not be that serious. Whereas if you're changing the whole policy itself, you might need to engage further. You need to think about whether or not the number of your employees, whether there's a trade union involved and the number of amendments in case you have to go down the line of collective consultation.

Scott: There are over 20 contracts changing, it falls within the EU definition of collective consultation . . .

Seamus: Yes.

Scott: ... requirements. So if you don't do that, you could end up with a failure to consult claim, and up to three months compensation for each individual that's been affected by that change.

Seamus: Yeah. That's it. So there are lots of things to think about in terms of the period of consultations. From my experience consultation for me as all about how it's presented to the presented to the employees. I don't think that there's any point trying to hide anything from the employees, but at the same time, you're not going to cause yourself huge difficulties maybe within creating problems where there isn't one to create.

I think it's best to be upfront and honest about what the changes are and the reasons that the changes are required. And whether that is, it's an updated law and we have to do this or alternatively, the company can't afford the sick pay scheme any longer. To change terms and additions, you do need the consent of the employees so it's about working with the employee or the trade union or the reps in order to do the best you can in order to appease the concerns of the employees. And that might mean that there's a bit of negotiation happening in their mind, and what you're proposals are.

Scott: That's indicated in the European jurisprudence where they talk of a consultation being with a view to reaching an agreement. So that has to be to some extent some give and take. And if you just give somebody saying, "Look, this is your new terms and conditions," or "here's your new policy," and they haven't had any input, they're not going to get buy-in. I mean, where they have to do the claim, the impression it gives to the employees is, "Hey, it's my ball. I make the decisions." That's not really a long-term way to get employee engagement, if nothing else.

Seamus: Absolutely. My thought in that is that the relationship is based on trust. If the employees feel that they are . . . having their eye wiped, or that the things are not being disclosed to them where they should be, there will be a loss of trust there and you'll get entrenchment. So there can be a negative fall out if that happens. So I think it's almost better that if you're upfront and clear about what the proposals are, and the reasons for and explaining those to the employees and that's the better approach in terms of consultation.


This article is correct at 13/12/2017

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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