Working with non-union representatives

If you are involved in a business transfer or service provision change - either because you are transferring employees to another employer or because you are receiving employees from another employer - you are responsible for informing and consulting the employees concerned.

You must consult elected employee representatives during such a transfer if:

• you don't recognise an independent trade union
• you recognise an independent trade union (or more than one trade union) to bargain on behalf of a group of employees but some of the employees affected by the transfer don't belong to that group

You must also consult union representatives where an independent trade union is recognised and where at least one employee affected by the transfer belongs to the bargaining group for which the union is recognised.

For more information on business transfers in general, see responsibilities to employees if you buy or sell a business.

Which employee representatives you should consult with

It is your responsibility to ensure that consultation is offered to appropriate employee representatives.

In some cases, you may need to arrange elections to select employees to carry out this task. However, if you already work with employee representatives in other capacities - eg where you regularly consult employee representatives in works councils, committees, etc - you may be able to use some or all of them for this purpose and avoid elections.

Where you arrange elections, but no employee wishes to stand, you will have to consult all the affected employees individually.

For more information on business transfers and the obligation to inform and consult when employees are being transferred to a new employer, see responsibilities to employees if you buy or sell a business.

If there are existing representatives, their remit and method of election or appointment must give them suitable authority from the affected employees. For example, if the affected employees are all located at one site, it would clearly not be enough to inform and consult representatives based solely at another site - even if they are part of the same business.

However, it would be appropriate for you to inform and consult:

• representatives already elected or appointed under the Information and Consultation of Employees Regulations (Northern Ireland) 2005 - see ongoing information and consultation arrangements
• a pre-existing committee of employees, such as a works council or staff forum, that you regularly inform or consult with more generally about the business's financial position and/or personnel matters

Arranging the election of employee representatives

If the employee representatives are to be specially elected, certain election conditions must be met.

When arranging to elect employee representatives, you must:

1. make such arrangements as are reasonably practical to ensure that the election is fair
2. determine the number of representatives to be elected so that there are enough representatives to represent the interests of all the affected employees, taking into account the number and classes of those employees
3. determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees
4. before the election, determine the employee representatives' term of office so that it is long enough to enable relevant information to be given and consultations to be completed
5. ensure that the candidates for election as employee representatives are affected employees on the date of the election
6. ensure that no affected employee is unreasonably excluded from standing for election
7. ensure that all affected employees on the date of the election are entitled to vote for employee representatives
8. ensure that the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, for as many candidates as there are representatives to be elected to represent their particular class of employee
9. hold the election in a way to ensure that, so far as is reasonably practicable, those voting do so in secret, and the votes given at the election are accurately counted

If an elected employee representative ceases to act as one and, as a result, certain employees are no longer represented, you must hold another election satisfying the rules set out at 1, 5, 6, and 9 above.

The law does not state how many representatives you must elect or the exact process for choosing them. However, you need to consider whether:

• the employees have enough time to nominate and consider candidates
• the employees - including any employees absent from work for whatever reason - can freely choose who to vote for
• the arrangements adequately cover all the classes of employees who may be affected by the transfer and provide a reasonable balance between the interests of the different groups
• you have any normal custom and practice for arranging and holding such elections and, if so, whether you have a good reason to depart from it, if you think you need to

Where you give affected employees a genuine opportunity to elect representatives, but the employees fail to do so, you must provide relevant information to all affected employees individually.

Right of employee representatives

Employee representatives in transfer situations have certain rights, which - if you breach them - could lead to an industrial tribunal claim against you. See employment-protection rights for employee representatives.