Lancaster University v The University & College Union UKEAT/0278/10/JOJ

Appeal against decision by the ET that the respondent employer had failed to comply with the requirements of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 when making redundancies, and that, if the appeal failed, the protective award should only be 30 days not 60. Cross appeal by the claimant that the protective award should be the maximum 90 days. Appeal and cross appeal dismissed.

The respondent University employed some staff on fixed term contracts, the continuation, or otherwise, of which partly depended on funding from outside agencies. Between 1996 and June 2009 the procedure adopted by the University for notification and consultation for staff, whose fixed-term contracts expired or were about to expire, was that four months before the proposed expiry date the HR Department would write to the head of department where the affected employee worked to ask if the individual’s contract was to be extended or whether it was at risk of termination. The employee would also be written to, to be reminded that the contract may be at risk if funding was not renewed and a meeting with his or her line manager was offered at which the employee could be accompanied by a colleague or Trade Union representative. The University would also provide the Union with lists of staff whose contracts were due to expire in the following four months. Following the appointment, by the union, of a regional support officer, the director of Human Resources at the University was told that the redundancy procedures did not meet legal obligations and the University did not understand its obligations of collective consultation. The HR manager was eventually persuaded of the need to comply with section 188 of TULRCA, but only after making more than 20 people redundant under the old procedure. The ET found that the University was in breach of s188 during the period March 31 and June 30, and awarded a protective award of 60 days to the employees made redundant between these dates.

The EAT agreed with the ET on the liability issue and the protective award. Although it was argued that the University had consulted with the union, albeit not in the correct way, the mere sending of lists to the union was an important breach of statutory obligation since it denied the union the background information they would require to challenge the selection process. The University’s process did not even begin to satisfy the obligation to engage in consultation with the union in order to avoid dismissal, reduce redundancies and mitigate the consequences of dismissals. The EAT decided that the protective award should remain as 60 days: the Tribunal were correct in adopting a ‘top down approach’ placing the breach at the top end and looking for mitigation, which in this case was the history of the University not being fully aware of the need for collective consultation and the union effectively condoning the practice of sending out lists. _____________________

Appeal No. UKEAT/0278/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16 September 2010

Judgment handed down on 27 October 2010

Before

HIS HONOUR JUDGE ANSELL

MS J L P DRAKE CBE

MRS D M PALMER

LANCASTER UNIVERSITY (APPELLANT)

THE UNIVERSITY AND COLLEGE UNION (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR JOHN BOWERS (One of Her Majesty's Counsel) Instructed by: Messrs Eversheds LLP Solicitors Eversheds House 70 Great Bridgewater Street Manchester M1 5ES

For the Respondents MR CHARLES PRIOR (of Counsel) Instructed by: Messrs Thompsons Solicitors 23 Princess Street Manchester M2 4ER

**SUMMARY**

REDUNDANCY

Collective consultation and information - obligation on employers to set up meetings with a view to reaching agreement.

Protective award - reasons to award less than the maximum amount.

**HIS HONOUR JUDGE ANSELL**
  1. This has been an appeal from a decision of a Manchester Employment Tribunal (Employment Judge Brain) who, following a hearing in March 2010 and in reasons sent to the parties on 12 April 2010, adjudged that the Respondents' complaint under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("Act") of a failure by the Appellant to comply with the requirements of section 188 of the Act was well founded. The Tribunal ordered the Appellant, by way of a protective award under section 189(3) of the Act, to pay to all academic and academic-related staff employed by the Appellant and who had been dismissed for redundancy (as defined by the Act) between 31 March 2009 and 30 June 2009, remuneration for the period of 60 days beginning on 31 March 2009. That order in itself contains an error since the maximum period covering dismissals under the Act is 90 days. We will deal with that issue below.
  1. The award was made because the Tribunal held that the Appellant had failed to provide the required statutory information for the purposes of collective consultation and had failed to carry out a collective consultation as required by the Act. The appeal is against the Tribunal's decision in relation to the Appellant's failure to conduct effective consultation (the liability issue) and also in relation to the level of a protective award. The Appellant contends that even if it were at fault in relation to both the failure to provide information and consultation the maximum award should have been no more than 30 days. By way of cross-appeal the Respondents contend that the protective award should have been the maximum award, namely 90 days.
**The Facts**
  1. We take the facts of the case from the Tribunal decision. The Respondent Union has a recognition agreement with the Appellant University and has sole bargaining rights on terms and conditions of employment for academic and academic-related staff. The principal witnesses before the Tribunal were, on behalf of the University, Valerie Walshe, the former director of Human Resources, a position that she held between 1993 and September 2009 and Marie Monaghan who was employed by the Union as a regional support officer, a position that she had held since 1 September 2008. The case primarily concerned consultation over redundancies on the termination of fixed-term contracts for the academic and academic-related staff. The University did have a redundancy procedure known as statute 20 but it seems that it was rarely, if ever, applied in practice to fixed-term staff. The University rarely made permanent staff redundant.
  1. The fixed-term staff were employed on fixed-term contracts whose length usually depended on the duration of funding and the funding of such staff is often sourced and provided by external funding bodies. Ms Walshe told the Tribunal that there was an expectation on the parts of those individuals that their employment was for a limited term unless future funding or an alternative role could be found when the funding stream was exhausted and decisions regarding the timing and duration of funding would often be entirely outside the control or influence of the Respondent. Ms Walshe also gave evidence that the predictable and routine expiry of these finite externally-funded contracts was very different in character to the proposed redundancy dismissals of staff resulting from, for example, the closure or restructuring of a department.
  1. Between 1996 and June 2009 the procedure adopted by the University for notification and consultation for staff, whose fixed-term contracts expired or were about to expire, was that four months before the proposed expiry date the HR Department would write to the head of department where the affected employee worked to ask if the individual's contract was to be extended or whether it was at risk of termination. The employee would also be written to, to be reminded that the contract may be at risk if funding was not renewed and a meeting with his or her line manager was offered at which the employee could be accompanied by a colleague or Trade Union representative. The purpose of the meeting was said to be to cover the reasons for the proposal; the possibilities of redeployment, extension to the contracts, secure further funding and alternative projects, redeployment and career development.
  1. A second consultation meeting would be held before the expiration of the fixed-term contract, as presuming it had not been possible to redeploy or extend the contract, confirmation would then be sent by the HR Department to confirm termination upon expiry of the fixed term. The University would also provide the Union with lists of staff whose contracts were due to expire in the following four months. These lists were originally sent in hard copy form but a practice developed of sending the lists by email. The covering email in each case said as follows:

"I attach advanced notification of staff employed on fixed-term contracts which are due to expire during the next four months. The list will be provided to the representative of the recognised trade unions for consultation purposes (TURER) on a monthly basis. Information on individual staff will continue to be provided."

Ms Walshe's evidence was that throughout the period during which these lists were being issued to the Union, she could not recall the Union ever raising any concerns or making representations in response to these notifications, although they would meet with the Union on a regular basis throughout the relevant periods.

  1. As stated above Ms Monaghan took up her position with the Union on 1 September 2008 and it seems rapidly formed the view that the procedure did not meet legal obligations to enter meaningful negotiations, particularly in relation to 20-plus redundancies. She told the Tribunal that her perception was that the University simply wanted to inform the Union of its decisions and that she believed the University did not fully understand its obligations of collective consultation.
  1. In October 2008 the University had sent to the campus Unions a draft revised redundancy and fixed-term contract policy. The Unions' response in November noted the recognition by the University of the need for collective consultation in order to comply with the Act.
  1. The next meeting to discuss these changes was held between the Union and the University on 10 February 2009. By this time the University's position was that as no agreement had been reached, a section 20 redundancy committee would be activated. Ms Walshe acknowledged at the Tribunal hearing under cross-examination that Ms Monaghan had raised the issue of the statutory obligation under the Act at the meeting. The University staff described Ms Monaghan as a very committed Trade Union officer but claimed that she could be difficult and would push aggressively. The Tribunal found that Ms Monaghan was, albeit forcefully, pointing out to the University its failure to comply with the collective consultation obligations under the Act.
  1. On 18 March 2009 Ms Monaghan wrote to Ms Walshe stating that she was the appropriate representative for receipt of statutory information under the Act and reminded Ms Walshe of the collective consultation obligations. By this time lists had been sent in relation to proposed dismissals in March, April and May 2009, indicating that more than 20 fixed-term employees would be involved.
  1. There was a further meeting on 2 April 2009 and the minutes of that meeting note that the University was looking to:

"Improve systems for managing potential redundancies "a part of which" included improved mechanisms and the information for consulting with the trade unions. In the interim the university would continue to provide monthly listings of the fixed-term contract expirees."

Ms Monaghan claimed, although it was not noted in the minutes, that she had raised the issue of how and when the University proposed to consult on the list of fixed-term contract staff made redundant at the end of April, May and June. Ms Walshe's reply, according to Ms Monaghan, was that the University was individually consulting with fixed-term employees. The Tribunal accepted Ms Monaghan's evidence on this issue.

  1. The Tribunal noted that Ms Walshe, in cross-examination, readily accepted the need for collective consultation taking the view that the monthly lists were the first step in that process, allowing the Union to revert to the University with any points that it wished to raise. Fiona Aiken, who was employed as the University Secretary, also gave evidence and claimed that the sending of the lists "puts the ball into the Union's court".
  1. At paragraph 52 of the Tribunal's decision it noted the following:

"Mrs Walshe also accepted in cross-examination that there was no collective consultation with the Claimant about the fixed-term employees whose contracts were due to expire between 31 March and 30 June 2009 and about whom a decision had been taken by the Respondent not to renew or re-engage their contract."

By the time of the hearing the University had revised their fixed-term contracts tool kit which was dated July 2009. That document had recognised a legal requirement under the Act to consult collectively with the Trade Unions upon potential redundancies. The Tribunal also noted the evidence of Ms Walshe who did not consider that the collective consultation obligations under the Act were designed with the University's circumstances in mind. Ms Walshe also acknowledged that the recognition and the need for collective consultation could have been incorporated in the pre-July 2009 version of the fixed-term contracts tool kit "if there was an impetus for it". She acknowledged, however, that there was a legal requirement upon the University collectively to consult.

  1. The next meeting took place on 21 April 2009, again to discuss the issue of statute 20. Ms Monaghan gave evidence that she asked Ms Walshe about the dates that she had promised to send through to consult on the fixed-term employees' redundancies then shortly to take place - Ms Walshe denied this conversation but again Ms Monaghan's evidence was preferred by the Tribunal. The issue of collective consultation was again raised on 15 May 2009 and on 3 June 2009 the Union's regional officer wrote to the Vice Chancellor of the University to remind him of the collective consultation obligations under the Act. It was proposed that once the Act's notification had been served local branch officials would undertake all or some of the consultations.
  1. On 25 June 2009 a meeting was held, the purpose of which was said to be "To start the process of collective consultation on potential redundancies". The Tribunal noted that Ms Walshe was recorded as saying that the legislation "Was not designed for the circumstances of a rolling set of potential redundancies". She accepted that even at this stage the parties were still talking "generalities" and that there were no proposals from the University with a view to consulting about avoiding dismissals, reducing the number of employees to be dismissed and mitigating the consequences of the dismissal. She accepted the meetings which had taken place between October 2008 and 25 June 2009 were generic in nature and mainly in the nature of consultation about procedures and policies to be utilised in the future.
  1. The Tribunal noted that a further redundancy collective consultation forum on 14 July 2009, which obviously was after the date of the last notifications with which they were concerned, appeared to be the first occasion upon which consultation had actually taken place about specific redundancies.
**The Tribunal's conclusions**
  1. Having set out the facts we turn to the Tribunal's conclusions and the grounds for appeal and cross-appeal. The relevant statutory provisions are contained in section 188, the relevant sections of which are as follows:

"188 Duty of employer to consult representatives

(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.

(1A) The consultation shall begin in good time and in any event—

(a) where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days, and

(b) otherwise, at least 30 days,

before the first of the dismissals takes effect.

(2) The consultation shall include consultation about ways of—

(a) avoiding the dismissals,

(b) reducing the numbers of employees to be dismissed, and

(c) mitigating the consequences of the dismissals,

and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.

(4) For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives—

(a) the reasons for his proposals,

(b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant,

(c) the total number of employees of any such description employed by the employer at the establishment in question,

(d) the proposed method of selecting the employees who may be dismissed.

(e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect.

(f) the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any enactment) to employees who may be dismissed.

(7) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsection (1A), (2) or (4), the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances. Where the decision leading to the proposed dismissals is that of a person controlling the employer (directly or indirectly), a failure on the part of that person to provide information to the employer shall not constitute special circumstances rendering it not reasonably practicable for the employer to comply with such a requirement."

  1. The relevant provisions in connection with the complaint and protective award are in section 189:

"189 Complaint and protective award

(1) Where an employer has failed to comply with a requirement of section 188 or section 188A, a complaint may be presented to an employment tribunal on that ground–

(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, and

(d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant.

(2) If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award.

(3) A protective award is an award in respect of one or more descriptions of employees—

(a) who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and

(b) in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188,

ordering the employer to pay remuneration for the protected period.

(4) The protected period—

(a) begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and

(b) is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer's default in complying with any requirement of section 188;

but shall not exceed 90 days."

  1. The Tribunal's conclusions in relation to the failure to consult were contained in paragraphs 70 to 72 of its decision as follows:

"We agree with Mr Prior's submission that the Respondent has not met and has not tried to meet his duty to consult collectively about the dismissals of the affected employees and, in particular, has not embarked upon or attempted consultation about any of the issues referred to in Section 188 (2) with a view to reaching agreement with the Claimant.

Mrs Walshe accepted that there was no collective consultation with the Claimant about the redundancies of any of the affected employees. The meetings over the relevant period were, rather, to discuss the procedure to be adopted in any future collective consultation exercise.

The Respondent's approach was to serve notice by way of list and then effectively leave it to the Claimant to raise issues. That is an impermissible approach. The duty is upon the Respondent to consult. Mrs Walshe's view of matters appears to be coloured by her view that the provisions of TULRA were not designed to meet the Respondent's circumstances and further a belief that the Respondent was not in fact one establishment (a point that the Respondent later dropped)."

The Tribunal also found that there was a failure to comply with section 188(4), its conclusions being set out in paragraphs 73 and 74 of their decision as follows:

"Not only was there non-compliance with the duties under Section 188 (1), (1A and (2), there was also, in our judgment, a failure to comply with Section 188 (4). The Tribunal accepts that the Respondent did, in the lists dated 3 November 2008, 2 December 2008, 6 January 2009 and 2 February 2009 comply with Section 188 (4) (a). The reason for the proposals was, clearly, the expiry of the fixed term and, given the course of conduct which the parties had adopted, the proposal not to renew or reengage the employee. We also conclude that the Respondent did comply with Section 188 (4) (b) in that the numbers and descriptions of employees whom it was proposed to dismiss as redundant were provided. The lists set out the numbers, the names of each employee, the post each employee holds and the department in which the employee is engaged to work for the Respondent.

However, we conclude that the Respondent failed to comply with the remaining obligations set out in Section 188 (4). The four lists fail to show the total number of employees of any such description employed by the Respondent, the proposed method of selection, the proposed method of carrying out the dismissals and the proposed method of calculating the amount of any redundancy payments to be made. Indeed, there is implicit recognition of this by the Respondent in its response to Thompson's letters of 11 June 2009. On 18 June 2009 , the total number of employees of each description are provided and (when read in conjunction with the email of 26 June 2009), the Respondent does provide the proposed method of selection, of carrying out the dismissals and of calculating the amount of any redundancy payments to be made. That notification was, of course, too late for those employees dismissed prior to 18 June 2009. The notifications of 18 and 26 June 2009 may be contrasted with the earlier notification by way of the lists to which we have already referred in conjunction with the individual notification given examples of which are at pages 328 and 329. We agree with Mr Prior that it is far from clear as to how the method of selection may be by "reference to the contracts of service" and that the method of implementation is simply "by way of non-renewal of the fixed term appointment."

  1. Mr Bowers QC, on behalf of the Appellant, argued on a liability issue that notwithstanding that the lists of employees, due to end their fixed-term contracts sent on a regular basis to the Unions, did not comply with the statutory information set out in section 188(4), nevertheless, he contended that the sending of the lists marked "For consultation purposes (TURER)", coupled with the regular meetings with the Unions over the period, constituted sufficient action on the part of the University to comply with the statutory requirements. He argued that the list should be set against the background facts, namely that 1) the employees concerned would have been well aware of their personal situation, namely the forthcoming termination of their fixed-term contract and the dependency on the outside funding and 2) the likelihood that there would be mainly pools of only one employee for redundancy purposes, although we note that the Tribunal, in paragraph 63, recorded Ms Monaghan's contentions that it was inappropriate for the University simply to assume pool sizes of one and also noting that some of the funding for the jobs was internal.
  1. Mr Bowers argued that this type of redundancy situation was far removed from the sudden close down of a business or a department because of falling orders. He submitted that the fact that the length and durability of the contracts were normally outside the University's control was accepted by the Tribunal in paragraph 21 of their findings. He made the following further submissions; (1) the list gave sufficient details for the Union to make representations about dismissal had they so wished to do so and thus to be consulted in the full sense of the word, (2) there were no selection issues, given that the pools of employees were normally only pools of one, (3) the Unions had the opportunity in various meetings with the University and had received invitations to take up consultation but did not do so. He submitted that the Union had had a fair and proper opportunity for it to understand the matters about which they were being consulted and to express a view (see R v BCC ex parte Secretary of State ex parte Price [1994] IRLR 72 at paragraph 25). He submitted that the Tribunal in their conclusions (paragraphs 70 to 72) had failed to deal with these issues or given them sufficient weight in coming to their conclusions that there had not been effective consultation.
  1. He also submitted that the breaches of section 188(4), in that only the first two subsections, (a) and (b), were complied with, could be regarded as a highly technical breach, in the circumstances in which there were normally only pools of one and the proposed method of selecting employees was obvious since it arose from the termination of their fixed-term contracts.
  1. In response Mr Prior took us firstly to the guidance contained in the authority of Susie Radin Ltd v GMB & Ors [2004] IRLR 400 which could, he submitted, be regarded still as the guideline case on section 188. At paragraph 24 Peter Gibson LJ set out the features of the statutory provisions and at paragraphs 1 and 2 said this:

"24 (1) An absolute obligation is imposed on the employer to consult the appropriate representatives of employees who may be affected by the proposed dismissals, such consultation to be in good time and to be conducted with representatives who are fully informed by reason of the required disclosure specified in s.188(4). Moreover, because the disclosure must be in writing, there can be no dispute as to the extent of the disclosure in fact made.

24(2) The topics for the consultation must include the matters specified in s.188(2) and the employer must undertake the consultation not as an end in itself but with a view actually to reach agreement."

He submitted that these issues had been properly considered by the Tribunal and indeed this liability appeal was only a thinly veiled attempt to try and reargue the facts. He submitted that the defective lists of information only complying in two respects with the six statutory requirements had to deal in every respect with the matters set out in 188(2), namely ways of avoiding dismissals, reducing the numbers of employees to be dismissed and mitigating the consequences of the dismissal. He also noted that the consultation had to be undertaken by the employer in order to reach an agreement. He submitted, therefore, that it was clearly within the statute a primary obligation on the employer to engage in and undertake the consultation process.

  1. He then went on to remind us of the at least six occasions found by the Tribunal when the Union had either reminded the University of their obligations under the statute and at least one occasion (paragraph 57) when Ms Monaghan asked Ms Walshe about the dates that she had promised to send through to consult on the fixed-term employee redundancies. He also reminded us of the Tribunal's findings that Ms Walshe knew of the statutory obligations but did not believe they were designed with the Respondents' circumstances in mind. He submitted that the fact of the third party funding was no excuse. One of the purposes of consulting with the Unions would be to take a broader picture than looking at each individual redundancy to explore ways of alternative funding, redeployment and indeed challenging the University's contention that there were normally only pools of one.
  1. As far as the defective lists were concerned the Tribunal set out the four areas in which the lists were defective and indeed noted in a list sent out on 18 June 2009 the University had indeed provided the additional information and clearly the Tribunal were concerned about issues that Mr Prior had raised in relation to methods of selection and the methods of implementation, in addition to questions as to the size of the pool and internal funding. He submitted that the provision of this information was an important part of the consultation process (see Securicor Omega Express Ltd v GMB.
  1. We are quite satisfied that the Tribunal's decision on a liability was correct. The sending of the proposed list of redundancies without the further addition or information required under section 188(4) in itself was, in our view, an important breach of statutory obligation since it denied the Unions the background information that they would require to challenge the selection process, in that they were dealing with expiration of fixed-term contracts. Provision of those lists marked "For consultation purposes" seems to us to fall well short of the statutory requirements and, in our view, did not begin to satisfy the obligation which was clearly placed on the employer to engage in consultation with the Union "with a view to reaching agreement", in particular the sending of the lists did not address in any way the matters set out in section 188(2), namely ways of avoiding dismissals, reducing the numbers of employees to be dismissed and mitigating the consequences of dismissals.
  1. Further, the University clearly failed to take up numerous reminders they were given by the Unions. They failed to set up any meaningful meetings to deal with this particular issue nor set an agenda which would cover the matters contained in section 188(2). Ms Walshe talked about her awareness of the obligations but her actions were unfortunately minimal, if not non-existent.
  1. The Tribunal made the clearest possible findings in relation to the history of the discussions, together with the significant finding in paragraph 52, that she had accepted in cross-examination that there was no collective consultation with the Union about the fixed-term employees whose contracts were due to expire during the relevant period and the conclusion contained in paragraph 72 that the University had failed in their duty to consult, clearly was a conclusion that the Tribunal were entitled to come to in the light of the findings that it had made.
  1. Section 188(1) of the Act applies to dismissals as redundant of 20 or more within a period of 90 days or less. The Union in fact claimed, in respect of dismissals, for a slightly longer period from 31 March to 30 June which was reflected in the Tribunal's order. It does seem to us and it is agreed by the parties that the order will have to be considered again by the Tribunal, as on its face it is invalid. There are also other issues in relation to possible re-engagement that will also have to be determined by the Tribunal. As regards the protective award, the Tribunal's conclusion was set out in paragraph 85 as follows:

"85. The authority of Susie Radin requires us to consider a maximum award of 90 days and to reduce it only if there are mitigating circumstances justifying a reduction. The Tribunal considers that there is a significant mitigating factor here: that the Claimant condoned the Respondent's practices for around 12 years between 1996 and the end of 2008. However, in recognition of the fact that the burden was upon the Respondent to collectively consult and appropriately notify under Section 188(4), and taking account of the fact that the Respondent was notified by Ms Monaghan of the need so to do in relation to the redundancies with which we are concerned, we consider that a 60 day protected period is just and equitable in the circumstances. This serves to recognise the mitigation to which we have referred but effectively sanctions the Respondent upon whom rests the burden of collective consultation and notification."

Mr Bowers took us to the guidance in

Susie Radin where at paragraph 45 Peter Gibson LJ gave the following guidance to Tribunals in deciding whether to make a protective order and for what period.

"45. I suggest that ETs, in deciding in the exercise of their discretion whether to make a protective award and for what period, should have the following matters in mind:

(1) The purpose of the award is to provide a sanction for breach by the employer of the obligations in s.188: it is not to compensate the employees for loss which they have suffered in consequence of the breach.

(2) The ET have a wide discretion to do what is just and equitable in all the circumstances, but the focus should be on the seriousness of the employer's default.

(3) The default may vary in seriousness from the technical to a complete failure to provide any of the required information and to consult.

(4) The deliberateness of the failure may be relevant, as may the availability to the employer of legal advice about his obligations under s.188.

(5) How the ET assesses the length of the protected period is a matter for the ET, but a proper approach in a case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the ET consider appropriate."

  1. That guidance has been considered further in two EAT cases; in Amicus v GBS Tooling Ltd [2005] IRLR 683 Burton J, when upholding a Tribunal award of 70 days said this:

"20. Peter Gibson LJ directs the tribunal to address the seriousness of the breach. It appears to us clear that where, as here, there was no consultation and no information provided, after the date of the proposal, it must be relevant, in order to sanction or punish a company which is in breach, to look to see what the nature of that breach is, what the consequence of that breach is, and what the state of mind lying behind the breach is. …. An assessment of the seriousness of the breach must include those kind of questions. It is clearly right that there was no finding by the tribunal, nor would it have been necessary to do so, as to precisely what information was here supplied."

  1. The issue has been most recently considered in this court by Underhill J in [Todd v Strain & Ors]() UKEAT/0057/10. This was a case involving the statutory requirement to provide information to employees about impending transfer under the TUPE regulations where a breach can result in an award of up to 13 weeks' pay. However, the wording in terms of information and consultation is in similar terms to the Act. At paragraph 29 Underhill J said this:

"29. Mr McDowall reminded us of Peter Gibson LJ's "point 5" in Susie Radin, where reference is made to taking the maximum award as the starting point and discounting, if appropriate, for mitigating circumstances; and as we understand it he made the same submission to the Tribunal. But that guidance is directed at the case where the employer has done nothing at all, and it should not be applied mechanically in a case where there has been some information given and/or some consultation but without using the statutory procedure."

Mr Bowers invited us to concentrate on two aspects of the Radin guidance; firstly, that the important focus should be the seriousness of the default and secondly, the "top down approach" suggested in paragraph 5 where one starts at the maximum and reduces it if there is mitigation, should be reserved for cases where there has been no consultation. In Susie Radin, Longmore LJ made it clear that the futility of consultation is not a ground to reduce the award.

  1. Mr Bowers made the following submissions in relation to the University's case; (1) that the Tribunal had failed to focus on the seriousness of the default. He contended this was not a non-consultation type case but he categorised it as minor breaches acquiesced over 13 years, therefore he contended it was wrong for the Tribunal to start with the maximum award and only reduce it in the light of mitigation. (2) The Tribunal had referred to six of the points in mitigation that he had put forward in paragraph 81 as follows:

"(i) The application for a protective award came out of the blue given that negotiations had taken place over many months (about the employment policies) and at which these issues could have been raised.

(ii) The Respondent accepted the need for consultation (as recognised by the Claimant in paragraph 7 of the details of the complaint)

(iii) No prejudice had been caused to any of the employees given the extensive individual consultation and there was a very developed system of individual consultation.

(iv) The Respondent was not in control of the process as crucial funding decisions were taken by external bodies and the process used had been accepted by the Claimant over many years.

(v) The Claimant was difficult to deal with in negotiation

(vi) The Claimant failed to take the opportunity to raise any of the cases at any meetings after the lists were sent as they could have done."

Then in paragraph 83 said this:

"Upon the basis of the authority of Susie Radin, the Tribunal cannot accept as mitigation the futility of consultation."

Mr Bowers contended that most, if not all, of the points that he put forward in mitigation should not have been described under the category of futility. They therefore failed to consider the mitigation points that he was putting forward in an attempt to minimise the seriousness of the breaches. It appeared from the Tribunal's decision that the only mitigation that it accepted was in relation to the Union condoning the University's practice for around 12 years. (3) He contended that 60 days was still far too long for a case of this nature and submitted the Tribunal's award should have been no more than 30 days. The Tribunal made findings, he contended, that showed that there was an attempt to inform and consult and there were meetings between the parties. (4) He contended that on the aspect of seriousness the Tribunal had failed to make findings on important issues. In paragraph 53 Ms Walshe had said:

"The Trade Union had the opportunity to raise issues with us. ….There is a duty on the Trade Union to participate and they seemed content with the procedure."

Further, in paragraph 63, the Tribunal had raised the issues in relation to pool sizes and internal funding and again the Tribunal had failed to make findings.

  1. In response Mr Prior made the following submissions; (1) the Tribunal clearly did have in mind the seriousness of the case in the light of the findings that they had made concerning non-consultation and lack of information and reinforced those findings in paragraph 84 when they said as follows:

"On the other hand, undoubtedly, the burden is upon the Respondent to collectively consult and provide adequate notification under Section 188 (4). It did not do so. Indeed, Mrs Walshe took the view that it did not have to upon the basis that it was more than one establishment and accordingly the numbers being made redundant at each establishment was such as not to engage the collective consultation obligations. Further, she took the view that the provisions of TULRA had been designed for a quite different set of circumstances. Further, Ms Monaghan pointed out on several occasions the need to collectively consult about the proposals to dismiss as redundant those employees set out on the lists and to do this in good time before the first of the dismissals took effect. Mrs Walshe did not engage in any collective consultation notwithstanding what she was being correctly told by Ms Monaghan."

(2) The Tribunal's findings pointed to this being a very serious breach in terms of lack of information and consultation and of a deliberate nature in the light of Ms Walshe's findings that she knew of the provisions, (3) he contended that the mitigation headings set out in paragraph 81 could, to a greater extent, be categorised as futility, e.g. point 4:

"The Respondent was not in control of the process as crucial funding decisions were taken by external bodies and the process used had been accepted by the Claimant over many years."

  1. As regards paragraph 53, he contended that this aspect had been contradicted by six or seven other references and the Tribunal's findings as to the Union raising issues with the University. As regards paragraph 63, the issues of the size of the pool and internal funding had simply been raised to show that there were real issues to be discussed in consultation.
  1. Further, by way of cross-appeal, Mr Prior contended that the Tribunal were in error in not awarding the maximum amount. He submitted that the Tribunal clearly had placed the University's breaches at the top end. His complaint was that any mitigation that the Tribunal took into account was in relation to the previous acquiescence in terms of previous dismissals and he contended that the Union's behaviour in regard to previous dismissals could not be mitigation in terms of the University's failure as regards these dismissals. Whilst in the case of Amicus Burton J had found that the meetings with Union representatives, where the situation had been discussed indicating likely redundancies, could be regarded as some mitigation in terms of the failure to consult, those were still meetings in connection with the redundancies which were the subject of the protective order rather than previous redundancies.
  1. Mr Bowers, in response, submitted that both the Susie Radin decision and Burton J had indicated that the Tribunal's discretion was very wide and he contended that the Tribunal were entitled to take into account the previous history between the parties.
  1. In terms of the Tribunal's approach we are quite satisfied that the Tribunal had in mind that this was 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 and that paragraph 84 had set out the University's failures, Ms Walshe's erroneous view and the reminders from Ms Monaghan. The Tribunal had also set out six points of mitigation advanced by Mr Bowers and it seems to us that some, if not all of them, could be categorised under the heading of futility. It therefore seems to us that the Tribunal were correct in adopting a "top down approach" placing this breach at the top end and looking for mitigation.
  1. We were troubled by the Tribunal's approach in seeking to use the history as mitigation for their behaviour as regards these redundancies. However, it seems to us that the answer can be found in the Tribunal's comments in paragraph 83 where they said this:

"Upon the basis of the authority of Susie Radin, the Tribunal cannot accept as mitigation the futility of consultation. However, the Tribunal does accept as mitigation that the Claimant had, for many years, effectively condoned the practice of the Respondent of sending out lists of those employees whose fixed term contracts were due to expire. It was only when Ms Monaghan came on the scene in December 2008 that the Respondent began to become aware that the Claimant was beginning to take a different view of matters."

We understand the Tribunal was saying that because of the history the University, and particularly Ms Walshe, may not have been fully alert as to the need for collective consultation and only became aware over a period of time.

  1. Another way of describing the situation would be that they had been lulled into a false sense of security. We cannot say that it was unreasonable for the Tribunal to take that aspect into account and, accordingly, we do not propose to interfere with the Tribunal's award.

Published: 27/10/2010 14:11

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