1. Introduction
The information and consultation obligation under Section 9 of the Protection of Employment Act 1977 is the substantive heart of the collective redundancy framework. The provision requires the employer to consult with employees’ representatives in good faith over a defined period in respect of specified matters.
This article addresses the scope of the Section 9 obligation, the meaning of “good faith” consultation in this context, and the consequences of non-compliance.
2. Legislation and Case Law
Section 7(2) of the Redundancy Payments Act 1967 defines redundancy. The provision identifies five circumstances in which a dismissal is by reason of redundancy: where the employer has ceased or intends to cease to carry on the business; where the employer’s requirements for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish; where the employer has decided to carry on the business with fewer employees; where the employer has decided that the work shall henceforth be done in a different manner for which the employee is not sufficiently qualified or trained; or where the employer has decided that the work shall henceforth be done by a person who is also capable of doing other work for which the employee is not qualified or trained.
Section 9(1) of the 1977 Act requires the employer to initiate consultations with the employees’ representatives at the earliest opportunity, and in any event at least 30 days before the notice of the first dismissal is given. The consultation must be in respect of the proposed collective redundancies and must, at a minimum, address the matters set out in Section 9(2).
Section 9(2) identifies the matters that must be addressed in the consultation: the possibility of avoiding the proposed redundancies, reducing the number of employees affected, or mitigating the consequences of the redundancies; and the basis on which it will be decided which particular employees will be made redundant.
The CJEU has emphasised in cases including USDAW v Ethel Austin Ltd (C-80/14) and AGET Iraklis (C-201/15) that the consultation obligation must be substantive. A perfunctory engagement with the representatives, or a presentation of a fait accompli, will not satisfy the obligation. The consultation must be conducted in good faith and with a view to reaching agreement.
Section 13 of the Act provides for complaints by the employees’ representatives in respect of the consultation obligation. Section 11A enables individual employees to bring complaints in respect of the consultation obligation in the context of complaints under the Unfair Dismissals Acts.
3. Decision
WRC and Labour Court decisions on Section 9 complaints typically address the substance of the consultation. The Adjudication Officer will examine the documents disclosed to the representatives, the meetings held, the substantive engagement on each of the Section 9(2) matters, and the timing of decisions relative to the consultation.
Where the consultation has been conducted in good faith, with timely disclosure and substantive engagement, the Section 9 obligation will, in general, be found to have been satisfied. The fact that the consultation did not produce an agreement does not, on its own, render it deficient.
Where the consultation has been a token exercise, with no real engagement on the Section 9(2) matters or with the outcome having been pre-determined, the Section 9 obligation will be found to have been breached. The breach may give rise to complaints both by the representatives and by affected individual employees.
The remedy depends on the procedural route. Complaints under Section 13 may give rise to compensation for the breach of the consultation obligation. Complaints under Section 11A may be combined with unfair dismissal complaints to produce more substantial awards.
4. Takeaway
For employers, the Section 9 obligation should be approached as a substantive engagement rather than a procedural step. The 30-day period should be used for genuine discussion with the representatives on each of the matters required by Section 9(2).
Documentation of the consultation is essential. Meeting agendas, minutes, written communications, and documentary disclosure to the representatives should all be retained. The records will be the principal evidence in any subsequent complaint.
For employees affected by collective redundancies, the Section 9 obligation is an important protection. Practitioners should examine the conduct of the consultation, identify any substantive failings, and consider whether complaints under Sections 11A and 13 are available.
Practitioners should also consider the parallel implications for individual unfair dismissal complaints. A collective redundancy that fails the Section 9 obligation may also fail the Section 6(7) reasonableness test in individual cases, with complaints available under multiple regimes.
5. Further information
This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.
6. About Crushell & Co
Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.
We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.
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