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 about ways of avoiding redundancies because the decision to close had been determined prior to any meeting with the union.
Held: The employer’s appeal succeeded. Mr Justice Burton said: ‘In the light of that analysis of the law, we turn to our conclusions on the facts of this case. We are satisfied that the Tribunal erred in law. The fundamental way in which they erred was the approach they took in paragraphs 23 and 25 of the decision, in which the tribunal concluded that because there had been no consultation in relation to the decision to close the branches, therefore, there could not be held to have been consultation at all. Judge Clark in his summary of the law, to which we have referred, and with which we agree, in Middlesbrough, expressly referred to the decision in Vardy (R v British Coal Corporation and Secretary of State for Trade and Industry ex party Vardy and others [1993] IRLR 104), a decision of the Divisional Court, given on behalf of the Court by Glidewell LJ. In that lengthy judgment at paragraph 116, Glidewell LJ, having referred to s.188, said this: ‘In my judgment this section does not require a consultation about the reasons for the redundancy, including whether or not a plant should close.”
EAT Redundancy – Protective award.
Judges:
The Honourable Mr Justice Burton (P)
Citations:
EAT/901/02, EAT/877/02, [2003] UKEAT 0877 – 02 – 0704, [2004] IRLR 9
Links:
Statutes:
Trade Unions and Labour Relations Consolidation Act 1992 188, Council Directive 75/129 of 17 February 1975 2(3), Council Directive of 24 June 1992 92/56/EEC
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; . .
Cited – 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, . .
Approved – 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 – E Green and Sons (Castings) Ltd v ASTMS EAT 1984
Nolan J considered the sub-section and the disclosure requirements on a consultation: ‘Flexibility in the course of consultation is obviously desirable, but the consultation envisaged by s. 99 cannot begin until the employer has provided 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 – Spillers French (Holdings) Ltd v Union of Shop, Distributive and Allied Workers (USDAW) EAT 1979
The employer closed its bakeries and made redundancies, but without consultation. The ET decided it could make a protective award even if none of the employees had suffered any loss because the redundancies must follow.
Held: In the . .
Cited – Commission v United Kingdom (Judgment) ECJ 8-Jun-1994
ECJ Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for . .
Cited – Kumchyk v Derby County Council EAT 1978
The appellant sought to advance an argument that a certain term was implied into the contract of employment which, for its consideration, would have required consideration of a factual framework which had not been explored in evidence.
Held: . .
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 . .
Cited – Clayton v City of Bath College and Another EAT 21-Sep-2006
EAT Equal Pay Act – Article 141 . .
Cited – Cranswick Country Foods Plc v Beall and others EAT 20-Dec-2006
EAT Redundancy – Protective award
Employees who were faced with redundancy obtained protective awards because of lack of consultation on the part of the employer. They continued to work and to receive salary . .
Cited – Wilkes v Dundee City Council, The Scottish Ministers EAT 16-Jan-2007
EAT Temporary music teacher’s claim for exclusion from pension scheme. Application of Preston cases and Jeffrey v Secretary of State for Education and ors [2006] ICR 1062. Claim time-barred. Obiter discussion of . .
Cited – Secretary of State for Health v Rance EAT 4-May-2007
EAT Equal Pay Act – Part time pensions
Practice and Procedure – Appellate jurisdiction/Reasons/Burns-Barke
The EAT exercised its discretion to allow a point conceded at the Employment Tribunal to be . .
Cited – Davies v Farnborough College of Technology EAT 10-Jul-2007
Unfair dismissal – Automatically unfair reasons
Redundancy – Fairness
Unfair dismissal – Polkey deduction
The Employment Tribunal erred in concluding that a breach in relation to Step 2 (failure to give sufficient information as to . .
Cited – Winder v Aston University and Another EAT 1-Aug-2007
EAT Equal Pay Act – Part time pensions
In deciding two cases in accordance with Preston v Wolverhampton NHS Trust (No 3) [2004] ICR 993 EAT, the Employment Tribunal did not err in holding that the Claimant . .
Cited – Pike v Somerset County Council and Another EAT 3-Oct-2008
EAT EQUAL PAY ACT: part time pensions
The Teachers’ Pension Scheme did not distinguish part-timers and full-timers, save for one rule which applied to teachers who retire and return to work. If the work was . .
Cited – Potter and Others v North Cumbria Acute Hospitals NHS Trust and Others EAT 24-Apr-2009
EAT CONTRACT OF EMPLOYMENT: Implied term / variation / construction of term
PRACTICE AND PROCEDURE: Amendent
The addition of new comparators to equal pay claims constitutes the addition of new causes . .
Cited – United States of America v Nolan EAT 15-May-2009
EAT REDUNDANCY: Collective consultation and information / Protective award
An Employment Tribunal held that the USA was in breach of Section 188 of the Trade Union and Labour Relations (Consolidation) Act . .
Cited – St Alphonsus RC Primary School v Blenkinsop EAT 18-May-2009
EAT SEX DISCRIMINATION: Pregnancy and discrimination
JURISDICTIONAL POINTS: Claim in time and effective date of termination
The Claimant was a teacher working half of each term until she became . .
Cited – Abbott and Others v Littlewoods Plc EAT 21-Jul-2009
EAT EQUAL PAY ACT: Part time pensions
PRACTICE AND PROCEDURE: Amendment
The Employment Judge erred in her assessment that the Claimant’s amendment to contend that it was not necessary for her to show . .
Cited – Clarke v London Borough of Harrow and others EAT 21-Oct-2004
EAT Equal Pay Act – Article 141 . .
Cited – GMB Union v M Fenton EAT 12-Oct-2004
EAT Sex Discrimination
S4(2) SDA 1975: was A’s allegation false and not made in good faith? The allegation was plainly false and the ET did not, or did not clearly, so find; but insofar as the ET concluded . .
Cited – Armstrong and others v The Newcastle Upon Tyne NHS Hospital Trust EAT 22-Nov-2004
EAT Equal Pay Act
Equal pay. No common terms of employment between different hospitals in the same Trust. No single source responsible for purposes of Article 141. Equality clause would survive a TUPE . .
Cited – Thacker, and Larthwell v Secretary of State for Education and Skills, Cambridge Regional College EAT 30-Mar-2005
EAT Equal Pay Act – Article 141 . .
Cited – Degnan and others v Redcar and Cleveland Borough Council EAT 14-Apr-2005
EAT Sex Discrimination – Injury to feelings.
EAT Equal Pay Act – Out of time . .
Cited – Amicus v Nissan Motor Manufacturing (UK) Ltd EAT 26-Jul-2005
EAT Employers failed to consult with company council rather than union – did not consult with union until later stage 3 weeks before employees had to indicate willingness to be relocated but 4.5 months before . .
Cited – Shaikh v The Department for Constitutional Affairs and others EAT 31-Aug-2005
EAT Equal Pay Act – Article 141. . .
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 – S M Deighton v Secretary of State for Education and Employment Henley College EAT 8-Dec-2005
EAT Equal Pay Act – Article 141 – By consent – Adjourned. Preston case pending legal representation. . .
Cited – Powerhouse Retail Ltd and others v Burroughs and others; Preston and others v Wolverhampton Healthcare NHS Trust and others (No 3) HL 8-Mar-2006
The appellants said they had been had been discriminated against on the grounds of their sex by the TUPE Regulations. Their discrimination cases had been dismissed as out of time.
Held: The employees’ appeals were dismissed: ‘A statute cannot . .
Cited – Deighton v Secretary of State for Education and Skills, Henley College EAT 2-May-2006
EAT Equal Pay Act – Article 141 . .
Cited – Air 2000 Ltd v D Mallam EAT 16-Mar-2004
EAT Unfair Dismissal – Polkey deduction . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 28 July 2022; Ref: scu.185501
