Clarkslegal LLP - Solicitors in Reading and London

Legal Updates

Collective Consultation - When Does the Obligation Arise?

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! 

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.
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