Lancaster University v The University and College Union

An employer proposing 20 or more redundancy dismissals must itself undertake timely, meaningful collective consultation with the appropriate representatives. Sending lists of employees, inviting representatives to raise issues, or consulting only about future procedures does not satisfy that duty. Consultation must address ways of avoiding dismissals, reducing their number and mitigating their consequences, and must be undertaken with a view to reaching agreement. The employer must also provide the written information required by section 188(4) of the Trade Union and Labour Relations (Consolidation) Act 1992. For a protective award, the tribunal should focus on the seriousness of the default. Starting with the maximum award and reducing it for mitigation is appropriate in a case involving no meaningful consultation, although the approach is not mechanical where some statutory information or consultation has been provided.

Lancaster University appealed against a Manchester Employment Tribunal decision holding that it had failed to comply with the collective consultation and information requirements applicable to proposed redundancy dismissals. The dismissals concerned academic and academic-related staff whose fixed-term contracts were expiring between 31 March and 30 June 2009.

The Employment Tribunal found that the University had circulated lists and held general discussions about policies and procedures, but had not collectively consulted about the particular proposed dismissals or supplied all the information required by section 188(4). It made a protective award covering 60 days. The University appealed on liability and quantum. The Union cross-appealed, seeking the maximum 90-day award. The central issues were whether the statutory consultation duty had been met and whether the protective period was just and equitable.

The appeal on liability and the Union’s cross-appeal on the protective award were dismissed. The case was remitted to the Employment Tribunal to reconsider the defective order, including the relevant 90-day period and issues concerning possible re-engagement.

1. Collective consultation. The obligation under section 188 was placed on the employer. The University’s circulation of lists marked for consultation purposes, together with general meetings about procedures, did not amount to consultation about the proposed dismissals. The University had not addressed the statutory subjects in section 188(2): avoiding dismissals, reducing the number dismissed and mitigating the consequences. Nor had it consulted with a view to reaching agreement.
2. Information. The lists supplied information about the reasons for the proposals and the numbers and descriptions of affected employees. They failed to provide the remaining information required by section 188(4), including the total number of employees of the relevant description, the proposed selection method, the method of carrying out the dismissals and the method of calculating redundancy payments. The omission was substantive because it deprived the Union of information needed to challenge the proposed process.
3. Protective award. Applying the guidance in Susie Radin Ltd v GMB & Ors, the Tribunal was entitled to treat the failures as serious and to begin with the maximum award, looking for mitigating circumstances. The guidance was not to be applied mechanically in every case, as explained in Todd v Strain & Ors, but this was effectively a case of no meaningful consultation and inadequate information. The Tribunal had considered the mitigation advanced and was entitled to take account of the Union’s historical acquiescence in the University’s practice. A 60-day award was therefore within its discretion.
4. The Tribunal’s order referring to 60 days beginning on 31 March was facially invalid because section 188 applied to dismissals of 20 or more employees within 90 days or less, and the order covered a longer period. That issue, together with possible re-engagement, required reconsideration below.

1. Employment Appeal Tribunal: upheld the finding that the University had breached section 188 and upheld the 60-day protective award, subject to remittal to correct and reconsider the Tribunal’s order.
2. Manchester Employment Tribunal: found the complaint under section 189 well founded and made a 60-day protective award. Reasons were sent on 12 April 2010.