Unison v Leicestershire County Council

A new point of statutory construction should be admitted on appeal only in exceptional circumstances, particularly where it would require fresh factual evaluation by the specialist first-instance tribunal. The value or public importance of a claim is not, by itself, exceptional. Whether consultation has begun “in good time” is a question of fact and degree. A protective award is a sanction for breach of consultation duties, focused on the seriousness of the default and any genuine mitigation. The Employment Appeal Tribunal may interfere with the amount only for an error of law.

Unison complained that Leicestershire County Council had breached its duty under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 when implementing a job evaluation scheme through dismissal and re-engagement. The Leicester Employment Tribunal made a 90-day protective award for employees whose grading was reduced and a 20-day award for employees whose enhancements were reduced.

The Employment Appeal Tribunal, in EAT/0066/05/DM, upheld the 90-day award but reduced the enhancement-group award to 10 days. The council appealed, challenging the treatment of “in good time” and the relevance of earlier discussions. Unison cross-appealed against the reduction. The central issues were whether the new construction point should be admitted and whether either tribunal had erred in law when fixing the protective awards.

1. Appeal dismissed; cross-appeal allowed. Laws LJ gave the leading judgment, with Scott Baker LJ and Brooke LJ agreeing. The 90-day protective award for the downgraded group was upheld, and the Employment Tribunal’s 20-day award for the enhancement group was restored.
2. The Employment Appeal Tribunal had correctly refused to entertain the council’s new construction of “in good time”. Under Jones v Burdett Coutts and the related authorities, a new point of law should be admitted only in exceptional circumstances, especially where it would open fresh factual issues. The high value of the claim did not suffice. Whether consultation began in good time required an evaluation of fact and degree which had not been undertaken and which was properly for the specialist first-instance tribunal.
3. It was inappropriate to give a gratuitous opinion on the true construction of section 188(1A) of the Trade Union and Labour Relations (Consolidation) Act 1992, or on the additional point based on Junk v Kuhnel. That could have required consideration of Council Directive 98/59/EC, predecessor measures and the vires of the amending subordinate legislation.
4. The Employment Tribunal was entitled to treat pre-proposal meetings and exchanges as irrelevant to the protective award for the downgraded group because the council had conceded that none of the issues requiring consultation under section 188 had been addressed. The maximum award was therefore open to it.
5. As to the enhancement group, the Employment Tribunal had considered the council’s willingness to consult under section 188(2) and treated it as mitigation. Its assessment of 20 days was a permissible discretionary judgment. The Employment Appeal Tribunal’s reduction to 10 days amounted to an error of law, because there was no failure to consider the relevant mitigation and no perversity or misunderstanding of the evidence.

• Court of Appeal (Civil Division): appeal by Leicestershire County Council dismissed; Unison’s cross-appeal allowed; the 20-day protective award for the enhancement group restored.
• Employment Appeal Tribunal: council’s appeal dismissed as to the downgraded group; enhancement-group award reduced from 20 days to 10 days.
• Leicester Employment Tribunal: protective award of 90 days for the downgraded group and 20 days for the enhancement group.