The employer appealed against a protective award made for failing to consult the union on prospective redundancies.
Held: The appeal failed. The duty to consult arose as soon as the redundancies were fixed as a clear, even if there had been only a provisional intention. There was also a duty to consult as to the reasons for the redundancies. The case of Vardy had now been superceded, and there is an obligation to consult over the reason for a redundancy, and where the reason is closure, the consultation should include the reasons for the closure.
EAT
Redundancy – Collective consultation and information / Protective award
The Employment Tribunal made maximum protective awards for failure to consult properly over mass redundancies at the Ellington Colliery in Northumberland. The employers contended that the Tribunal had erred in its approach, which caused it to minimise the extent and nature of the consultation which had occurred. In particular, they contended that it had erred in its approach to special circumstances, and in fixing the appropriate length of the protective award.
The two trade union respondents contended that the decision should be upheld on the facts, and in a cross appeal further submitted that the Tribunal was wrong to take the view -which they did in the light of binding authority- that there was no obligation to consult over the reason for the closure itself.
The EAT dismissed the appeal and upheld the cross appeal. Dictum of Glidewell LJ in R v British Coal and Secretary of State for Trade and Industry ex parte Vardy [1993] ICR 720, 752 to the effect that there need be no consultation over closure held to be no longer good law in the light of changes to the statutory provisions.
Judges:
Elias J P
Citations:
[2007] UKEAT 0397 – 06 – 2709, Times 23-Nov-2007, [2008] ICR 163, [2008] IRLR 4
Links:
Statutes:
Trade Union and Labour Relations (Consolidation) Act 1992 188, Council Directive 98/59/EC
Jurisdiction:
England and Wales
Citing:
Cited – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
No Longer Good Law – Regina v British Coal and Secretary of State for Trade and Industry ex parte Vardy QBD 1993
Glidewell LJ considered the significance of the difference between the wording of the EC Directive, and the section implementing it and said: ‘In my view the difference between the wording of the Directive and the wording of section 188 of the Act . .
Cited – Commission v Greece ECJ 21-Sep-1989
Europa 1. There is an inseparable link between the obligation to establish the Community’s own resources, the obligation to credit them to the Commission’s account within the prescribed time-limit and the . .
Cited – MSF v Refuge Assurance Plc, United Friendly Insurance EAT 15-Feb-2002
EAT The EAT considered the employer’s duties to consult on making redundancies. The ET had found that company had satisfied the requirements. The Union argued that the duty to consult arose as soon as . .
Cited – Scotch Premier Meat Ltd v Stuart Burns and others EAT 28-Apr-2000
EAT Redundancy – Definition . .
Cited – Junk v Kuhnel ECJ 27-Jan-2005
ECJ Social Policy – Directive 98/59/EC – Collective redundancies – Consultation with workers’ representatives – Notification to the competent public authority – Concept of ‘redundancy’ – Time at which redundancy . .
Cited – Leicestershire County Council v Unison EAT 2-Sep-2005
EAT Redundancy: Protective Award
Employment Tribunal correctly applied the judgment in Susie Radin v GMB [2004] ICR 893 in its approach to the calculation of a protective award for one group of workers, . .
Cited – Middlesbrough Borough Council v TGWU Unison EAT 4-May-2001
The council sought to make redundancies because of its financial circumstances following re-organisation. The employees said the consultation procedure had been a sham.
Held: Fair consultation involves giving the body consulted a fair and . .
Cited – Yeboah v Crofton CA 31-May-2002
The industrial tribunal had made a finding of direct race discrimination. The Employment Appeal Tribunal found the decision perverse, and ordered a rehearing. The applicant appealed that order.
Held: The EAT must be careful not to take . .
Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
Cited by:
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Lists of cited by and citing cases may be incomplete.
Employment, European
Updated: 12 July 2022; Ref: scu.261535