Collective Redundancy - Failure to consult; ignorance is no defence
This month the Employment Appeals Tribunal (EAT) considered the application of the “special circumstances” exception to the obligation to collectively consult. The Claimant stated that the special circumstance was its lack of knowledge of the associated legislation and procedural requirements to collectively consult. The EAT has upheld a tribunal's decision to make a 90 day protective award in circumstances where no consultation was undertaken regardless of the fact the employer was unaware of its legal obligation to consult.
This acts as a reminder to all businesses proposing to make 20 or more employees redundant within a period of 90 days or less (collective redundancies), that there are a number of necessary procedural steps which must be adhered to and the employer must consult on its proposals with representatives of the affected employees (either a recognised union or elected employee representatives). Consultation must be with a view to reaching agreement on avoiding the need for dismissals, reducing the number of employees to be dismissed, and mitigating the consequences of the dismissals (section 188, Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA)).
Where the duty to collectively consult has been breached, a tribunal may make a protective award. The maximum protective award is up to 90 days' actual gross pay for each dismissed employee. The award is punitive and is not based on loss of earnings. Be warned!
E Ivor Hughes Educational Foundation v Morris and others UKEAT/0023/15
Posted on 07/07/2015 by Ortolan
