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A recent
case (Shanahan Engineering v Unite
2010) acts as a timely reminder
about the importance of engaging in
some form of collective
consultation, even where it is not
possible to meet the minimum period
of consultation (30 day = 20-99
employees’, 90 days 100+).
An engineering company
received notice from its customer to
amend its working practices within
24 hours resulting in an immediate
need to reduce the workforce by 50
employees. The need to make 20 or
more redundant immediately triggered
obligations to inform and consult
under S.188 Trade Union & Labour
Relations (consolidation) Act 1992
(“s.188) 50 staff were made
redundant the day after the working
practices were implemented.
Complaints were submitted by Unite,
the recognised trade union, that the
Company had failed to comply with
its S.188 obligations. The Employer
argued that there were special
circumstances rendering it not
reasonably practicable to comply
with s.188.
An Employment Tribunal found that
there were special circumstances
rendering it not practicable to
consult for a 30 day period but that
there were no special circumstances
preventing the Employer from
engaging S.188 (2) and (4) –
information in writing about the
collective redundancy circumstances
and the need to consult on ways to
avoid dismissals, reducing the
number of dismissals and mitigating
consequences of those dismissals.
The tribunal felt the Employer could
have engaged in some consultation,
albeit limited, over 2-3 days and as
this had not occurred awarded 90
days protective award.
The employers appeal failed except
on the point that the award should
reflect the mitigating circumstances
that existed. Remember the
protective award is seen as punitive
rather than compensatory and in this
case a 90 day award was given.
One has to have sympathy with the
Employer who, without proper notice,
ended in a collective consultation
obligation. However the reasoning of
the Tribunals emphasizes that
obligations under subsections of
s.188 are not to be taken as one
complete obligation, but instead
viewed independent of each other
with the over riding theme that an
Employer must do all that is
reasonable practicable to comply
with each individual sub sections of
s.188.
Some consultation is better than
none and this case clearly indicates
that even if consultation is limited
to 2-3 days, it goes some way to
complying with the obligations under
s.188.
The case also reaffirmed the long
held position that “special
circumstances” means “something out
of the ordinary, something uncommon”
and reliance on this as a defence
should really be seen as a step of
last resort.
There are similar provisions which
arise on a business transfers under
the Transfer of Undertakings
(Protection of Employment)
Regulations 2006 (“TUPE 2006”).
However there is no minimum number
of employees which need to be
affected and there is no minimum
period of consultation, but instead
consultation must take place long
enough before the transfer. A
similar approach to the obligations
(“doing all that is reasonably
practicable to comply”) under s.188
as set out in this case should also
be adopted with TUPE 2006
obligations.
If you need guidance, advice or
assistance on information and
consultation, whether that be for
redundancies or business transfers
(including service provision
changes) then call our Employment
Team:
Oliver McCann (Employment
Partner)
01254 297930
oliver.mccann@taylors.co.uk |
Copyright 2006 - 2010 Taylors Solicitors
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