CONSULT COLLECTIVELY

Lancaster University v University and College Union

Under the collective redundancy consultation legislation, employers have to consult with the representatives of any employees who might be affected. In Lancaster University v University and College Union, the Employment Appeal Tribunal (EAT) held that sending a list of fixed term employees to be made redundant to the union “for consultation purposes” fell well short of its statutory obligations to consult.

The claimants’ union, the UCU, instructed Thompsons to act on their behalf.

Basic facts

The university followed a procedure whereby it wrote to fixed-term employees four months in advance of their contract being terminated to discuss possible future options.

If the contract was not renewed or extended, the university held a second meeting, after which it would confirm that the contract would be terminated. It also sent the union a list of the fixed term staff who might lose their jobs. In this case it had sent lists of fixed term employees to be dimissed in March, April, May and June 2009.

In February 2009 the union pointed out that the university was not meeting its obligations to consult collectively under section 188 of the Trade Union and Labour Relations (Consolidation) Act (TULRCA). It made another request on 18 March 2009.

The university failed to respond and the UCU lodged a claim for a protective award under section 189 of TULRCA.

Relevant law

Section 188 of the Act states that employers must consult if they propose to dismiss as redundant 20 or more employees in a 90 day period, including ways of avoiding dismissals and reducing the number of employees to be dismissed.

Employers must disclose in writing to the appropriate representatives six statutory pieces of information, including the reasons for the dismissals, the number and description of employees to be dismissed and the proposed method of selecting them, among others.

Tribunal decision

The tribunal held that the lists sent out by the university amounted to proposals to make the fixed term employees redundant and that the collective consultation obligations applied to them.

However, it said simply sending lists to the union and waiting for them to raise issues did not meet the obligations on the university to consult under section 188(2). It also found that the lists only satisfied two of the six statutory requirements to provide information. As such it said that the university had failed to comply with its obligations under TULRCA.

Following the guidance set out in Susie Radin Ltd v GMB, the tribunal said it would not award the maximum payable (90 days’ pay) because the union had “effectively condoned” the practice of sending lists in previous years and awarded 60 days’ pay.

The university appealed the decision and the union cross-appealed the reduced award.

EAT decision

The EAT confirmed the tribunal decision that the university was in breach of the relevant provisions of the collective consultation legislation. In particular, it had failed to respond to numerous reminders to consult or arrange any meaningful meetings.

As for the reduction in the protective award, it said that the tribunal was correct to assess it as “a very serious breach in terms of a failure to consult and to supply information in the face of reminders from the Union about their obligations”. It also said that the tribunal had been correct to adopt “a top down approach” whereby it placed the breach at the top end of the spectrum of failure to consult and then looked for mitigating factors.

However, it was “troubled” by the tribunal’s reliance on past history as mitigation, and took this to mean that the university had been “lulled into a false sense of security”. Accordingly, it did not interfere with the tribunal’s decision to award 60, as opposed to 90, days’ pay.