One key unresolved issue in current case law is whether an employer must consult on the strategic business decision behind the redundancies before that decision is finalised.

In UK Coal Mining Ltd v The National Union of Mineworkers, the Employment Appeal Tribunal held that genuine consultation on the business reason(s) behind the redundancies is required as part of an employer's statutory obligation to consult over ways in which the proposed dismissals can be avoided (section 188(2)(a), Trade Union and Labour Relations (Consolidation) Act 1992) (TULRCA) (EAT/0397/06/RN and EAT/0141/07/ RN) (see News brief "Collective redundancies: is it your business to consult?").

Understandably, the Acas guide does not resolve this point, but states that employers must start the consultation "early enough for meaningful consultation to take place" and that presenting a proposal as "a done deal" would not allow the employee representatives to play a constructive part in discussions as to the way forward, reflecting current case law. (Note that Acas is clear at the start of the guide that wherever "must" appears in the text, this indicates a legal requirement, not simply good employment practice.)

The guide also says that as the consultation must be "with a view to reaching agreement" (section 188(2), TULRCA), it should enable issues to be discussed "at a formative stage", allowing time for the employer to give "real consideration" to counter proposals or suggestions put forward by the employee representatives. The guide therefore encourages, but does not specifically mandate, consultation on the business reason(s) behind the proposed redundancies as this is "more likely to produce creative solutions".

Collective consultation obligations arise only where 20 or more dismissals are to take effect "at one establishment". However, there is currently no statutory definition of "establishment" and the government stated in its response to the consultation on changes to the collective redundancy regime that it was not going to introduce one (see News brief "Collective redundancy law shake-up: reducing the burden on employers?"). This was largely on the basis of current uncertainty over the meaning of "establishment" at an EU level, and how this applies in a UK context (Rockfon A/S v Specialarbejderforbunet i Danmark, C-449/93 (www.practicallaw.com/3-100-0253); Athinaiki Chartopoiia v Panagiotidis, C-270/05).

Drawing on the European Court of Justice cases, the Acas guide states that it may be helpful to ask the following questions:

The guide also states that to be a "distinct entity" a workplace does not have to:

Where employees work from more than one site, the guide notes that it is worth checking what individual contracts of employment provide about any geographical location or management structure to which the employees are assigned, and being clear about what actually happens in practice.

A notoriously difficult issue in practice is where collective redundancies arise as a result of the transfer of a business or undertaking under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE).

As the guide acknowledges, the timing of two parallel consultation processes, one dealing with the transfer and one with collective redundancies, can be confusing. There is currently no statutory provision enabling either of the consultation exercises to be carried out jointly by both transferor and transferee, although, as a matter of practice, this is sometimes how the process is managed.

The guide states that "good practice" suggests that the old and new employer should "work together co-operatively to ensure effective consultation", and that in some instances the transferee can start consulting with the transferor's employees before the transfer. The guide does not elaborate any further as to when this might be appropriate, but does refer to the separate government consultation on changes to TUPE, which sought views on this issue (www.practicallaw.com/1-523-7836). Any changes to TUPE on this and other issues are not expected before October 2013.

A large section of the guide is dedicated to "Looking after your employees and your business", and highlights the importance of:

Acas is clearly supportive of, but does not mandate, an agreed redundancy procedure. The guide lists the commonly included provisions of an agreement for a procedure (and includes a sample procedure at Appendix 2), and sets out the benefits that Acas perceives such a procedure can bring to both employers and employees.

Although the guide is aimed at collective redundancies, it also touches on issues which apply equally to all redundancies. For example, it summarises the law on the offer of alternative employment and trial periods, selection criteria (including a sample selection matrix), and statutory redundancy payments.

Finally, the guide summarises the current rules on the election of employee representatives, and contains guidance on their roles and responsibilities, including behaviour and attitudes which Acas considers may be helpful to them during a consultation process.

The guide is undoubtedly a useful and comprehensive reference point, and recommends a collaborative approach to dealing with large-scale redundancies which is, of course, to be welcomed. It is likely to be particularly helpful to small and mid-sized employers that may not have an HR team experienced in handling collective redundancies. There is, perhaps, the potential for confusion as regards those obligations which are mandatory and those which are merely good practice recommendations, but we think the language makes this distinction pretty clear.

As for the tricky areas where the law will not be changed, it will ultimately be for the courts (both in the UK and Europe) to provide more guidance. However, the guide does tackle difficult issues in a practical and helpful way.