In Leicestershire County Council -v- UNISON (LELR105; 2006, IRLR 810), the Court of Appeal said that the employers could not introduce a new argument about the meaning of “in good time” at the appeal hearing when it had not done so at the original tribunal, despite the high value of the claims.
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 an evaluation of 9,000 jobs in 1999. After a number of meetings with the trade unions between July 1999 and May 2002, negotiations broke down.
Once the job evaluation was complete, the council decided to downgrade some employees and enhance the terms and conditions of others. It took the formal political decision on 12 December to dismiss both groups and offer them jobs on new terms and conditions.
However, this formal decision was preceded by a meeting of the council’s employment committee a month earlier, which had considered a report to give notice and offer re-engagement to all staff affected by the job evaluation.
On 13 December, the council wrote to the union side telling them of the formal decision, and on 20 December, sent a “consultation notice”, 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 tribunals decide?
The tribunal decided that the obligation to consult arose by mid-November at the latest. As the formal announcement was not sent to the union until 20 December, the council was in clear breach of its duty to consult “in good time”.
It made a protective award of 90 days for the downgraded group, and 20 days for the enhancement group (because the trade union side had failed to respond to the council's invitation to consult about them).
The Employment Appeals Tribunal (EAT) agreed that the decision to dismiss had been taken in mid November. Relying on the ECJ decision in Junk -v- Kühnel (LELR 98), it said that the obligation to consult must arise before an employer decides to terminate someone's contract.
The EAT upheld the award of 90 days' pay for the downgraded group, but reduced the protection award to 10 days for the enhancement group, saying that the council had tried to negotiate with the unions.
However, it refused to allow the employers to argue a new point – namely, that the expression “in good time” in the legislation meant not “speedily” but in good time before the proposed dismissals took effect. It had not argued this point at the tribunal and there were no exceptional circumstances to allow it to do so now.
What did the Court of Appeal decide?
The Court of Appeal agreed with the EAT that the employers should not be allowed to introduce a new argument about the construction of the expression “in good time”.
It was not convinced by the employers’ argument that it was in the public interest to rule on what it meant, not least because a decision in their favour would mean remitting the case back again to the tribunal.
It said that “it is well established that the EAT should only allow a new point of law to be taken before it in exceptional circumstances… Nothing had been shown to demonstrate that the present case was of an exceptional nature. The high value of the claim could not make it so.”
It also said that the tribunal was right to make a protective award for the maximum period of 90 days, given that the employers had totally failed to comply with the requirement to consult.
The EAT was wrong, however, to reduce the protective award for the enhancement group and it upheld the union’s cross appeal.