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Employment Law

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10 SEP 2015

E Ivor Hughes Educational Foundation v Morris and others UKEAT/0023/15; (2015) EMPLR 047

E Ivor Hughes Educational Foundation v Morris and others UKEAT/0023/15; (2015) EMPLR 047
19 June 2015

Employment Appeal Tribunal (EAT)

Lewis J

The duty to consult employee representatives over collective redundancies (20 or more within a 90-day period) arises when a provisional decision is made to close the business (in this case, a school) and not at the later date when the decision is finalised.

The governing body decided in February 2013 that, if pupil numbers did not increase, the school would close. Pupil numbers did not increase. In April 2013, the school decided to close. It did not consult employee representatives until June 2013 and even then, as the tribunal later concluded, that consultation was a sham.

The recognised unions and some individuals complained to a tribunal of a failure to consult employee representatives. The school argued that the obligation to consult did not arise until April 2013, by which time there was no time for meaningful consultation because redundancy notices had to be issued then to avoid having to pay an additional term’s notice pay.

The tribunal held that the duty to consult arose in February when the provisional decision was made. There was therefore plenty of time for consultation. In any case, the desirability of avoiding an extra term’s notice pay did not excuse the failure to consult. The only defence, where an employer has failed to consult as required, is that there were ’special circumstances’ which made consultation ‘not reasonably practicable’. The fact that consultation might result in more notice being given was not a ‘special circumstance’. The other defence relied on by the school, that the possibility of closure needed to be kept confidential to avoid parents withdrawing pupils from the school, was similarly not a ‘special circumstance’; the risk of the proposal being leaked could have been avoided by explaining to employee representatives the need for confidentiality.

This case does not mean that consultation must start as soon as employers make a decision that could lead to redundancies (as some commentators have suggested). The obligation is to consult ‘in good time’. It did not, therefore, really matter whether the obligation to consult arose in February or in April. The fact is that the obligation to consult arose and the employer did not consult ‘in good time’.
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