01 December 2010 #Employment
It is established under s.188 TULRA 1992 that the obligation of an employer to collectively consult arises when the employer is ‘proposing` to dismiss as redundant 20 or more employees.
However, following the case of USA -v- Nolan the position seems to be unclear. This case has been referred to the ECJ for guidance.
In this case a decision to close an army base was taken in March 2006. Employees were informed of the closure on 24 April and collective consultations began on 5 June.
The Employment Tribunal found that the employer failed to engage in any meaningful consultation and made a protective award. The EAT upheld this decision.
When did the obligation to consult arise? Is it at the point before or after a strategic/commercial decision has been made regarding collective redundancies?
Other cases were considered that provided different approaches. The case of UK Coal -v- NUM found that where closures and dismissals are inextricably linked, the duty to consult over the reasons arises at this point. The ECJ case of Akavan -v- Fujitsi suggests a narrower interpretation in that the duty may only arise once the crucial operational decision has been taken.
This has caused some uncertainty and clarity will be needed - so watch this space!