Darnton v Bournemouth University

An employer’s mistaken interpretation of statutory deadlines does not, without more, constitute a reasonable excuse for failing to implement default information and consultation procedures. A later agreement which would have complied with the statutory scheme cannot excuse an earlier breach. In fixing a penalty, the tribunal must make a broad evaluation of all relevant circumstances, including the gravity and duration of the breach, its cause, the number of employees affected, and any mitigating effect of alternative procedures operating in practice. A real penalty may remain appropriate for unexcused errors, even where there was no deliberate disregard of the Regulations.

An employee’s request triggered negotiations for an information and consultation agreement under the Information and Consultation of Employees Regulations 2004. The Central Arbitration Committee found that the employer had failed to arrange the election of information and consultation representatives by the statutory deadline and ordered it to arrange a ballot. The employer accepted that decision but argued that it had a reasonable excuse for the failure. The application concerned whether a penalty notice should be issued and, if so, the appropriate amount.

1. The application under regulations 19(6) and 22(6) was allowed. The Tribunal issued a penalty notice requiring the University to pay £10,000.
2. The University had no reasonable excuse under regulation 22(7). Its mistaken belief about the date of the employee’s request was unsupported by evidence of relevant legal advice. In any event, the CAC had determined the correct date before the failure occurred.
3. The alleged implicit agreement to extend the negotiation period did not provide a reasonable excuse. The argument was wrong, and the University had itself sought express agreement after the date on which the extension had to be made. A later ICE Agreement could mitigate the penalty but could not excuse the failure to arrange the statutory election.
4. The assessment of penalty under regulation 23 was a broad evaluative exercise. The Tribunal was required to consider all relevant circumstances and should not attempt a precise analysis of the weight assigned to individual factors.
5. The absence of deliberate disregard or careless indifference was an important mitigating circumstance. The shadow information and consultation procedures, which had operated in practice, substantially reduced the practical gravity of the breach. Nevertheless, the breach affected the whole workforce, followed from serious unexcused errors, and required a real penalty. The appropriate amount was £10,000.

The judgment records related proceedings before the Central Arbitration Committee, which found the complaint well-founded and ordered the University to arrange and hold a ballot. The Employment Appeal Tribunal then determined the application for a penalty notice under regulations 19(6) and 22(6).