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HR1 notification - proposed changes
The government is currently consulting on new regulations that will make it clear that the HR1 notification to the Secretary of State of proposed collective redundancies should take place before notices of dismissal are issued. This amendment is being proposed as a consequence of the ECJ decision in Junk v Kuhnel in which it was held that no notice of dismissal may be given until:
i) collective consultation has ended; and
ii) notification to the authorities of the collective redundancies has been made.
Current rules and problems
At present, if an employer is proposing to dismiss as redundant 20 to 99 employees at one establishment within a period of 90 days, then the HR1 notification should be given to the Secretary of State at least 30 days before the first of the redundancies takes effect, regardless of when notice is actually served. In the event that 100 or more redundancies are proposed, the HR1 form must be sent at least 90 days before the first of the redundancies takes effect.
To date, the Redundancy Payment Office (RPO) does not appear to have operated a very stringent enforcement regime, and although fines of up to £5,000 may be levied in the event of an HR1 notification failure, there is very little anecdotal evidence of such fines actually being imposed. It remains to be seen whether or not this approach will change.
Consultation document
In its consultation document, the government refers to the first finding in Junk that notice should not be served until consultation is complete. The government considers that the current provisions of s188 of the Trade Union Labour Relations (Consolidation) Act 1992 are consistent with that view. Section 188 requires consultations to begin in good time. Although no particular end point for the consultations is stipulated, the government's view is that ‘in good time' must be construed in light of the judgment as meaning that consultations are commenced in time for them to be completed before notices of dismissal are issued.
These changes are expected to come into effect on 1 October 2006.
Case reference
Junk v Kuhnel (Case C-188/03, 27 January 2005)