Labour & European Law Review Weekly Issue 232 25 August 2011
The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) requires employers to consult with a trade union or (if none is recognised) employee representatives in certain circumstances. In Phillips v Xtera Communications Ltd, the Employment Appeal Tribunal (EAT) said that employers do not need to hold a ballot to elect reps if the number of employee nominees matches the number of representatives needed.
On 16 June 2008, Xtera sent an e-mail to staff at the Harold Wood site informing them of impending redundancies. It also invited them to elect representatives to negotiate with the company, suggesting that two would be appropriate.
On 18 June, two names were put forward. One of the employees then changed their mind but was replaced. A third person then volunteered and the company agreed to all three. Although Mr Phillips wasn’t at the meeting when the reps were agreed, the company sent an e-mail to all staff asking if there were any objections and did not receive any.
In early July Xtera decided not to close the site but to relocate some staff and make two redundancies. Mr Phillips was invited to a consultation meeting which he attended with one of the three representatives. He was subsequently dismissed on grounds of redundancy.
He claimed unfair dismissal and a protective award, arguing that Xtera had not complied with TULRCA in that it did not hold an actual election, involving a ballot, vote and counting to pick the employee representatives.
Section 188(1) of TULRCA says that employers must consult with the “appropriate representatives” of employees when making 20 or more redundant in 90 days or less at one establishment.
In relation to electing employee representatives, section 188A (1)(a) states that “the employer shall make such arrangements as are reasonably practical to ensure that the election is fair”.
The Tribunal found against Mr Phillips, saying that there was no breach of TULCRA as the requirement to hold a secret ballot only applies “insofar as it is reasonably practicable”.
It took the view that an election only requires the affected individuals to select whoever they want to represent them and that is what happened in this situation. In any event, the Tribunal did not think that it was reasonably practicable to hold an election in circumstances where the employees had already identified who they wished to represent them.
And the EAT agreed. It said there were sufficient safeguards in the legislation to guard against situations where employers might try to “rig” an election because the law required them to “make such arrangements as are reasonably practical to ensure that the election is fair”.
Likewise, employees concerned that their employer was trying to get “yes men” elected can put themselves forward or nominate another candidate if they so wish. No employees did this.
It concluded that section 188A (1) does not require the employer to hold a ballot in every situation. When “the number of employee nominees or candidates matches the number of representatives to be elected and no further candidates are proposed ... no ballot or vote is required”.
It went on to add that on the facts as found, even if there had been a breach, the judgment of the employment Tribunal would have driven the EAT to the conclusion that the breach was “technical” in nature and that the employment Tribunal, and EAT, would not have made a protective award.