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 proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consulter thereafter considering those views properly and genuinely. That consultation was not to be as to the reasons for the proposals, but the employer could not do away with consultation because it would make no difference. The Tribunal was right to consider that the consultation was a sham insofar as the decision had already been taken by the time of the consultation. The tribunal had however made no finding as to the defence of special circumstances. The EAT found however that the decision of the tribunal was plainly and unarguably right, and that the error of law was of no effect. The appeal was dismissed.
HHJ Clarke said: ‘(3) Subject-matter of consultation
We have earlier observed that the employer is not obliged to consult as to his reasons for proposing redundancies: ex parte Vardy. However, consultation must (‘shall’) include consultation about ways of avoiding dismissals: reducing the number of employees to be dismissed and mitigating the consequences of the dismissal, and shall be undertaken with a view to reaching agreement with the unions: s .188(2).’
Judges:
His Honour Judge Peter Clark
Citations:
EAT/26/00, [2001] UKEAT 26 – 00 – 0405, [2002] IRLR 332
Links:
Statutes:
Trade Union and Labour Relations (Consolidation) Act 1992 188(2)(a) 189, Employment Tribunal Rules of Procedure 1993 10(3)
Jurisdiction:
England and Wales
Citing:
Cited – Regina v British Coal Corporation, Ex Parte Price and Others QBD 28-May-1993
British Coal had the power to close coal mines once the unions had been consulted. The court gave guidance on the extent of consultation necessary.
Held: Fair consultation will involve consultation while consultations are at a formative stage; . .
Followed – Regina v British Coal Corporation and Secretary of State for Trade and Industry ex parte Vardy and Others QBD 1993
British Coal Corporation had decided to close 31 deep mine collieries. The court was asked as to just what consultation obligations fell on the employer under the 1946 Act.
Held: The section did create an obligation to consult. Glidewell LJ, . .
Cited by:
Cited – UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area) and Another EAT 27-Sep-2007
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 . .
Approved – 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 . .
Lists of cited by and citing cases may be incomplete.
Employment, European
Updated: 04 June 2022; Ref: scu.168191
