The duty to consult appropriate representatives where 20 or more redundancies are proposed at one establishment. UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area); Junk v Kuhnel.
Protective award; collective consultation; s.189 TULRCA 1992. The protective award is a sanction for the employer's breach of the s.188 obligations, not compensation for loss suffered by the employees in consequence of the breach [45(1)]; the focus is the seriousness of the employer's default [45(2)]. Where there has been no consultation at all the proper approach is to start at the maximum 90 days and reduce only for mitigating factors [45(5)]. The word 'punitive' at [27] is a quotation from Association of Patternmakers v Kirvin Ltd [1978] IRLR 318 and should not be attributed to Peter Gibson LJ.
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Collective redundancies; Directive 98/59/EC; meaning of redundancy and the timing of consultation and notification. The event constituting redundancy is the employer's declaration of his intention to terminate the contract of employment, not the actual cessation of employment when notice expires [36], [39]. The obligations to consult and to notify therefore arise before any decision to terminate contracts [37]. Article 2 imposes an obligation to negotiate, whose effectiveness would be compromised if contracts could be terminated during the procedure: a contract may be terminated only after the consultation procedure has concluded [43]-[45]. Notification is treated differently: Articles 3 and 4 do not preclude termination during the notification procedure, provided it comes after the projected redundancies have been notified to the public authority [53]. An employer may carry out collective redundancies after consultation has concluded and after notification [54]. Foundational CJEU authority on the timing of the consultation trigger.
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Collective consultation; s.188 TULR(C)A; the duty to consult on the reasons for proposed dismissals extends to consultation on the closure decision itself where closure and dismissal are inextricably linked. The EAT rejected the argument that an employer can deliberate on closure first and consult on dismissals only after the decision is made. [Summary not yet checked against the judgment.]
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References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Collective consultation; s.188 TULR(C)A; 'proposing to dismiss' is a continuous, forward-looking concept. Closure of the business as a fixed, clear, albeit provisional intention, short of a discrete dismissal proposal, is sufficient to trigger the duty. Three claimants dismissed on the first day of administration were entitled to protective awards of 90 days' pay where the administrators' contemporaneous report showed no formal offers had been received and sale of the business was not realistically achievable.
“That indicates that he was not looking at what was being proposed but rather on whether or not there was a fixed certain proposal at a point in time. … the Judge's focus appeared to be whether there was a fixed clear intention which amounted to a proposal to make collective redundancies. That, in my judgment, is a misstatement of the relevant legal principles.”Judge Tucker, at [56]
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Redundancy; collective consultation; s.188 TULRCA 1992; meaning of proposing to dismiss; pool and individual consultation. The tribunal misread UQ v Marclean as requiring it to look backwards and forwards and aggregate dismissals: Marclean concerns the meaning of collective redundancies in Article 1 of the Directive, not when an employer is contemplating them, and s.188 asks what the employer was proposing for the future [55], [60], [64]. Later dismissals may still support an inference of an earlier proposal [61]. The duty is owed only in respect of employees with a contract with the respondent: a de facto employer of group staff is not enough [74], [76]. No single unified proposal is required: separate departmental decisions can amount to the employer proposing [85]. The findings of unfair dismissal, for failing to consider a pool of two and for inadequate consultation, stood [106], [110]-[111]. The s.188 issues and the protected period were remitted to the same tribunal [112]-[113], [115].
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.