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12 March 2013
Employment Appeal Tribunal (EAT)
Slade DBE J
Employers who make 20 or more redundancies within a 90-day period must provide certain specified information in writing to and must consult employee representatives or, if the employer recognises a trade union in respect of the employees affected, that recognised union. If it fails to do so, employee representatives (if they have been elected) or the trade union (if it is recognised) may complain to an employment tribunal. A trade union is recognised for these purposes only if it has been agreed, either by written or oral agreement or through a history of dealings, that it may bargain collectively (ie negotiate) with the employer on behalf of its members. Negotiation is more than just consultation.
The PCS Union claimed that it was recognized by WL and therefore WL should have consulted it when WL made 51 redundancies.
An Employment Judge concluded that PCS Union was recognized. Various matters had, according to the EJ, been ‘negotiated' including negotiations about the ‘machinery for negotiation or consultation'. Those consultation arrangements had existed for many years.
The EAT disagreed. The arrangements which the EJ had concluded amounted to negotiation were in fact only examples of consultation or discussion - the employer had consulted over or discussed with the union decisions that it had or would make. That is different from negotiation.
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