Kelly v The Hesley Group Ltd UKEAT/0339/12/ZT;  IRLR 515; (2013) EMPLR 036
19 April 2013
Employment Appeal Tribunal (EAT)
Langstaff J, Mrs R Chapman and Mrs L S Tinsley
Consultation with employee representatives or trade union representatives must begin ‘in good time' where an employer ‘is proposing to dismiss as redundant 20 or more employees within a 90-day period'. This case confirms that the duty only arises when the employer has formulated proposals - it is not enough that the employer contemplates the possibility of redundancies. It also shows that employee representatives appointed by the employer (rather than employees) for purposes other than consultation may not be appropriate representatives for these purposes.
The employer proposed various changes to terms of employment to relieve financial pressure. All but 32 of the 300 or so staff agreed. The employer therefore started consultation with a Joint Consultative Committee (JCC), some of whose members were ‘co-opted' by the employer.
Two of those who did not agree the changes complained to a tribunal that consultation should have started as soon as the employers realized there could have been job losses if the proposals were not agreed; and that the JCC members were not employee representatives for these purposes because they had not all been appointed or elected by employees and they had no negotiating rights.
The tribunal disagreed. The employer did not have to consult until it had actually formulated proposals to dismiss; and that the fact the JCC had no negotiating rights was irrelevant, because the legislation only required them to have authority to receive information and to be consulted.
The EAT agreed that the requirement to consult only arose once it had formulated proposals; but thought that the absence of negotiating rights was relevant because the consultation referred to in the legislation meant consultation with a view to reaching agreement - which, the EAT said - ‘is more akin to negotiation' than to merely receiving information. That point was remitted to the tribunal.
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