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, made obiter comments on the similar consultation duties under section 188 of the 1992 Act: ‘In my judgment, this section does not require a consultation about the reason for the redundancy, including whether or not a plant should close. ‘ As to article 2 of the Directive, he said: ‘By Article 2(2) the scope of the consultations is in part defined. In my view the fact that consultations are to begin as soon as the employer contemplates redundancies and that they are to include ways and means of avoiding redundancies indicates that the Directive is to be interpreted as including consultation on ways of avoiding redundancies by not closing the particular establishment, if that is what the employer has in mind.’ Section 188 was therefore not consistent with the Directive: ‘In my view the difference between the wording of the Directive and the wording of section 188 of the Act 1992 is such that the section cannot be interpreted as having the same meaning as the Directive.
I say this because in the Directive consultation is to begin as soon as an employer contemplates redundancies, whereas under the Act of 1992 it only needs to begin when he proposes to dismiss as redundant an employee. The verb ‘proposes’ in its ordinary usage relates to a state of mind which is much more certain and further along the decision-making process than the verb ‘contemplates;’ in other words, the Directive envisages consultation at an early stage when the employer is first envisaging the possibility that he may have to make employees redundant. Section 188 applies when he has decided that, whether because he has to close a plant or for some other reason, it is his intention, however reluctant, to make employees redundant. Moreover, section 188 of the Act 1992 contains no words equivalent to those contained in Article 2 (2) of Directive (75/129/EEC).’
Judges:
Glidewell LJ, Hidden J
Citations:
[1993] IRLR 104, [1993] ICR 720
Statutes:
Coal Industry (Nationalisation) Act 1946 46, Council Directive of 24 June 1992 92/56/EEC, Trade Union and Labour Relations (Consolidation) Act 1992 188(2)(a) 189
Jurisdiction:
England and Wales
Cited by:
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 . .
Followed – 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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Employment, European
Updated: 18 May 2022; Ref: scu.416025
