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.
Collective redundancies; Directive 98/59/EC; the consultation and notification obligations must be complied with before any individual notices of dismissal are issued. A 'collective redundancy' takes place at the point notice to terminate is given, not when employment ends on expiry of the notice period. Foundational CJEU authority on the timing of the consultation trigger.
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.
Protective award; collective consultation; standing. Where an individual employee brings a complaint under s.189 TULRCA 1992, the tribunal has jurisdiction to make a protective award in that complainant's favour alone and cannot make an award benefiting other redundant employees who are not parties. An individual cannot bring a representative claim on behalf of the wider affected workforce.
Protective award; a week's pay. A week's pay for the purposes of a protective award is not subject to the statutory cap on a week's pay imposed by the Employment Rights Act 1996.
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.
Redundancy; consultation; consultation must be meaningful; using a 'pre-determined' matrix without input is unfair.