18/09/18

Practitioners Insights: To Consult or Not to Consult, and How Do We Do it Well?

We spend much of our time explaining to employers that they need to consult with their teams over a number of issues. ACAS gives some clarity regarding the overview of what it means, but once you have read their excellent advice, what you really want to know is how to do it.

We can all agree that “Employee communications and consultation are essentially about involving and developing people in an organisation. Employees will be able to perform at their best if they know their duties, obligations and rights and have an opportunity to make their views known to management on issues that affect them.”

There are times that consultation is formally required by law. This includes changes to terms and conditions (e.g. changes in hours, sick pay etc.), a transfer of undertakings, redundancy and reorganisation, or a change of location. In many of these cases, the formal consultation should be through elected representatives. With the lessening access to trade union support for many employees, many companies have set up consultation and communication bodies within the organisation. There are rules around setting up such a body if you have 50 or more employees: https://www.gov.uk/informing-consulting-employees-law

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However, for me, this isn’t just about obeying our statutory requirements. It is about making a difference to how we engage our workforce. I work with lots of organisations to help them set up consultative bodies. The theory behind it is excellent, but we face many challenges. The first challenge is getting people to volunteer to represent their colleagues and be a conduit for information. Once that hurdle is overcome, building a high enough level of trust for the employee representatives to be open and honest during the meetings can take some time, and requires significant skill and leadership behaviour from the managers who participate in the group.

Ideally, as ACAS states “Good communications and consultation are central to the management process when dealing with changes in working practices and procedures. Communication is concerned with the exchange of information and ideas within an organisation. Consultation involves managers actively seeking and taking account of the views of employees before making a decision.”

Photography of Women Talking to Each Other

So, what do we recommend?

Even for small companies, having some kind of employee voice via a communications group is helpful to identify suggestions that team members will raise, or concerns. It is also a great way of sharing the direction of the business with the team, ensure that the values and culture are understood, shared and modelled, and identify the best ways of retaining talent, particularly at a time of high employment when we know that workforce shortages are becoming a significant economic risk.

Create a document that identifies what you want from the group, how things will be shared, and the legal standing of the group should formal consultation for a transfer or change be required. Once a group is in place, we recommend that there is training for all participants (managers and representatives), and time is spent identifying some rapid ways of building trust and showing that the group can have a positive impact. This only works where the leaders in the organisation really want to make a difference, and listen to the workforce. Genuine communication and consultation has a real impact on productivity, but it has to have the buy in of all parties to work effectively.

The greater consultation impact has been discussed above, but when dealing with formal consultations involving a change for groups or individuals, there needs to be clarity around the process. This is critical as failure to consult carries a significant risk of claims which will give rise to financial compensation.

Ideally, the level of trust with the consultation group enables the discussion at the earliest possible point that change is being considered. This enables a discussion to consider alternatives if change is being proposed and also picks up where sensitivities may exist and the best way to communicate with groups or individuals. All this can be agreed by the consultation group. This may re-shape the initial proposals. (Please note: where a change proposed affects 20 or more people, it is important to take advice as to whether the rules on collective consultation are triggered as this will dictate the process and timescale.  You are also under an obligation in those prescribed circumstances to inform the secretary of state for Business, Energy and Industrial Strategy)

Once this first stage has taken place, there is a requirement to communicate with those directly affected. Depending on the nature of the change, it may be appropriate to have brief meetings out of courtesy with those affected (particularly in re-structures / redundancy situations) and then sharing with the wider workforce to explain changes and any proposal. This should be accompanied by a consultation document, with clear time line and a frequently asked questions document. Along with this, an option for individual consultation meetings must be offered to address personal concerns and considerations. There is good quality. We are always on hand to provide guidance available for those specific circumstances.

In brief, consultation is a wider issue as an ongoing employee engagement tool, but in specific circumstances, clear, statutory guidance has to be followed and we recommend that you seek advice before embarking on any form of consultation.

18/09/18

About the author

Kitsons Solicitors - Carolyn Giles

Carolyn GilesStrategic HR Consultant

Carolyn Giles is our Strategic HR Consultant and a Chartered Fellow of the CIPD

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