Transport & General Workers Union v Brauer Coley

The Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) requires employers to consult unions (among others) before making any employees redundant. If they don’t, tribunals may make a protective award.

In Transport & General Workers Union v Brauer Coley (2007, IRLR 207), the Employment Appeal Tribunal (EAT) said that tribunals can only make protective awards for the employees for whom the union was recognised.

Basic facts

In July 2005, Brauer Coley dismissed all its shop floor engineering workers at its Radway Road site in Shirley on the basis of redundancy, as it was going into administration.

The company receivers had one meeting with the recognized trade union, the TGWU, on 11 July but only to tell them that “it was out of their hands”. The company did not provide the union with any information and there was no other consultation.

The union complained to a tribunal that the company was in breach of its obligations under TULCRA for failing to consult with them.

The legislation

Under section 188, employers have a duty to consult the appropriate representatives of affected employees “if the employees are of a description in respect of which an independent trade union is recognised by their employer.”

Section 189(1) states that a complaint may be presented to a tribunal if an employer fails to comply with section 188 in three circumstances:
(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

If the tribunal makes an award, section 190 states that “every employee of a description to which the award relates is entitled ... to be paid remuneration by his employer for the protected period.”

Tribunal decision

The tribunal agreed with the case put forward by the TGWU, and made the protective award for 90 days. However it said it could only do so in respect of the engineering section employees for which the union was recognised, and not for anyone else.

The union appealed, arguing that once a protective award has been made then it should be available to anyone who can benefit from it. And that should include other TGWU members, even if they were not members of the engineering section.

EAT decision

However, the EAT disagreed. It said that the tribunal was right to decide that it could only make a protective award for the employees for whom the TGWU was recognised, even though some of them were not trade union members. It could not make an award in favour of other employees who had been made redundant at the same time, even if they were TGWU members.

The EAT said that were they to agree with the union, employers could find themselves liable for employees “who, on the face of it, were not party to the claim and were not represented by the union at the material time or at all.”

It concluded that the union’s claim had to be based on a specific breach of the obligations owed to it. As a protective award can only be made in favour of employees who have been made redundant, and about whom a complaint had been proven under section 189(1), this could only relate to section 189(1)(c) in this case. In those circumstances, the tribunal was right to make the limited order that it did.

Comment

This decision results from the end of the “single channel” decisions of the European Court in the 1980s, which forced the then Conservative Government to provide for cases in which an employer did not recognise a trade union. Where an employer makes redundant members of a union who fall outside the scope of its recognition agreement, individual claims have to be raised by those members. Although a tribunal would most probably hear them with the union’s main claim they do not fall within it.