It is well established under the Trade Union and Labour Relations (Consolidation) Act 1992 that employers have to consult "in good time" with their workforce before making redundancies.

In Leicestershire County Council v Unison, the employment appeal tribunal (EAT) has confirmed that, even if an employer partly complies with the requirement, they will not automatically be "credited" for it. Likewise, any consultation in advance of those decisions will not count. It is for the tribunal to decide which mitigating factors will justify a reduction.

 

What were the facts in the case?

Following a national agreement in 1997 to introduce a single structure for manual and administrative staff, Leicestershire County Council started evaluating 9,000 of its jobs in 1999. It held 16 meetings with the relevant trade unions between July 1999 and May 2002.

By June, most jobs had been evaluated and the council then turned its attention to those staff whose jobs had been downgraded, as well as those whose enhancements were affected.

It took the formal political decision on 12 December to dismiss both groups and offer them jobs on new terms and conditions within the new structure. However, it was clear that most of the work to carry out that decision had been undertaken at least a month before.

On 13 December, the council wrote to the union side telling them of the formal decision "to proceed with imposing job evaluation" but not saying how it was to be done. On 20 December, a "consultation notice", was sent to the Unison local branch secretary.

Unison claimed that the council had failed to consult with them about the redundancies "in good time" and applied for a protective award for both the "downgraded" group and the "enhancement" group.

 

What did the tribunal decide?

The tribunal decided that the obligation to consult arose by mid-November at the latest. All that happened on 12 December was the announcement of a decision that had already been arrived at, given the "considerable level of activity already underway to implement the strategy".

As the formal announcement was not sent to the union until 20 December - at least a month after the decision was taken to dismiss - the council was in clear breach of its duty to consult 'in good time.'

Following Susie Radin Ltd v GMB & ors (LELR 90), the tribunal made a protective award of 90 days for the downgraded group, and 20 days for the enhancement group (on the basis that the trade union side had failed to respond to the council's invitation to consult).

 

What did the EAT decide?

The EAT said that it could not interfere with the tribunal's decision that "not just a proposal but a decision had been made in mid-November 2002."

Relying on the ECJ decision in Junk v Kühnel (see LELR 98), the EAT said that, given that the whole purpose of the legislation is to avoid dismissals, the obligation to consult must arise before an employer decides to terminate someone's contract.

Consultation should therefore "begin before a decision is made as to the implementation of redundancy. By that, we mean prior to the giving of notice of redundancy and, of course, prior to the taking effect of such notice."

The EAT upheld the award of 90 days' pay for the downgraded group, holding that the council's partial compliance with the requirement to provide information did not mean that there should be an automatic reduction.

In line with Susie Radin Ltd v GMB & ors, it said that it is for the tribunal to consider which mitigating circumstances would justify an appropriate reduction.

However, it reduced the protection award to 10 days for the enhancement group, saying that the council's approach to them had been impressive after 12 December. It had not just tried to consult, but to negotiate with them, and should therefore be taken into account in mitigating the penalty.