Keeping Kids Company (KKC), which was in financial difficulty, applied for a Government grant in June 2015 on the basis that private funding would also be forthcoming. Under this re-structuring, it was known that more than half of the employees would be made redundant. However, the funding fell through after negative publicity in July 2015 and in the event, all employees were made redundant. Although the restructure plans had envisaged a process of consultation, it was common ground that there had been no compliance with the obligations under section 188 TULRCA. The Claimants duly made claims for protective awards which were granted. KKC appealed.

The EAT upheld only one ground of appeal. The ET majority had permissibly concluded that by June 2015 KKC was proposing redundancy dismissals that might affect all its employees, thus triggering its obligation to consult under section 188 TULRCA. However, the ET majority had effectively acknowledged that the negative publicity in July 2015 might have been a special circumstance, preventing further consultation taking place thereafter. In failing, however, to further allow that this might be a relevant matter when considering the period covered by any protective award, the ET majority had erred in its approach.