Have mercy on me

Northgate HR Ltd v Mercy

When making redundancies, employers have to consult with “appropriate representatives”. The Court of Appeal has confirmed in Northgate HR Ltd v Mercy (2008, IRLR 222) that if employers fail to do that, only the employee representatives and not individual employees can bring a complaint.

Basic facts

In 2002 Rebus Human Resource Services (for whom Mr Mercy worked as a quality consultant) set up an Employee Consultation Council (ECC) made up of a number of employees and managers.

In late 2003, Rebus was taken over by Northgate and in January 2004 it announced that there would be about 180 redundancies. Mr Mercy was told in March 2004, along with a colleague, that one or other of them would have to go.

Using redundancy criteria that had been agreed with the ECC, the two men ended up with 67 points each. The Human Resource Manager then applied the length of service criterion, as a result of which Mr Mercy was selected for redundancy and his contract came to an end on 18 June 2004. He brought a claim for unfair dismissal and a protective award.

Relevant law

Section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 says that employers have to consult with “appropriate representatives” of anyone who may be made redundant. Section 188(4) then requires employers to disclose certain information in writing to those representatives.

Section 189 says that if an employer does not comply with a requirement of section 188, then a claim can be made for a protective award

(a) in the case of a failure relating to the election of employee representatives, by any of the affected employees or by any of the employees who have been dismissed as redundant
(b) in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related
(c) in the case of failure relating to representatives of a trade union, by the trade union
(d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant

Tribunal and EAT decisions

The tribunal said that the company was technically in breach of section 188(4) because it had not given the ECC employee representatives the information they should have had at the start of the consultation process. As it was a “formal slip”, however, it only awarded Mr Mercy one week’s pay.

The Employment Appeal Tribunal (EAT) allowed the company’s appeal on the protective award claim, saying that any complaint concerning a failure to provide the employee representatives with information could only be brought by them and not by Mr Mercy himself.

Mr Mercy appealed again, arguing that the Court should adopt a “purposive” approach, keeping in mind that the purpose of the legislation was to provide protection for employees. He said that as “non-union employee representatives do not enjoy the same independence or perform their tasks with the same robustness as trade union officials”, this ought to be reflected in a wide construction of section 189(1)(d) and a narrow construction of section 189(1)(b) by the courts.

Court of Appeal decision

The Court of Appeal did not agree. It said that the law made no distinction between independent trade unions and non-union employee representatives.

It accepted the company’s argument that section 189(1) “is a carefully devised provision defining and restricting standing to bring a complaint and that where, as here, the complaint is [about a] breach of the obligation to provide information to appropriate employee representatives”, it can only be presented by the employee representatives to whom that failure related.

It said that Mr Mercy should have raised his concerns with his representatives on the ECC and they could then have commenced proceedings under section 189(1)(b) on his behalf.