EAT Redundancy: Collective Consultation and Information – UNFAIR DISMISSAL – Duty to Consult When Proposing to Dismiss Employees as Redundant – Time At Which Obligation Arose – Special Circumstances – Protective Awards – Unfair Dismissal – Procedural Fairness
The Appellant operated a girl’s school. Due to declining pupil numbers, the Appellant decided at a meeting on 27 February 2013 to close the School unless numbers increased. The final decision to close was taken on 25 April 2013 when pupil numbers for the 2013 to 2014 academic year were known. In the particular circumstances of this case, the Tribunal was entitled to conclude that the obligation in section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘the 1992 Act’) to consult prior to dismissing staff as redundant arose on 27 February 2013. The decision on that date to close the School, unless numbers increased, which was considered to be unlikely, was either a fixed, clear albeit provisional intention to close the School or amounted to a strategic decision on changes compelling the employer to contemplate or plan for collective redundancies. On either analysis, the duty to consult arose on that date. The Tribunal was entitled to conclude that there were no special circumstances which made it impracticable to consult and that a protective award of 90 days was appropriate given that there had been no consultation and the failure to consult resulted from the reckless failure to consult legal experts on the employment implications of the closure. The fact that the employee had not suffered actual loss was not capable of amounting to a mitigating factor justifying a reduction in the period of a protective award that would otherwise be just and equitable having regard to the seriousness of the employer’s default. The appeal against the protective award would be dismissed.
In relation to the unfair dismissal claim, the Tribunal acted unfairly in dealing with the question of the likelihood of three Claimants being been able to secure a post at another school operated by the Appellant. The three Claimants were permitted at the hearing to adduce evidence on this issue at a time when it was known that the Appellant’s witness was unavailable. The Tribunal, in permitting the evidence to be adduced, expressly recognised the need to ensure that the Appellant would not be prejudiced. In those circumstances, it was unfair for the Tribunal to deal with the question of the likelihood of the three Claimants being able to secure the job without first giving the Appellant the opportunity to adduce evidence. The appeal in relation to the unfair dismissal claim would be allowed to that extent and the question of the likelihood of the three Claimants being able to secure the post remitted to a differently constituted Tribunal.
Lewis J
[2015] UKEAT 0023 – 15 – 1906
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 188
England and Wales
Employment
Updated: 01 January 2022; Ref: scu.549359
