Phillips v Xteria Communications Ltd

For the purposes of collective redundancy consultation, an election of employee representatives occurs where, following fair arrangements, the number of nominees matches the number of available places and no further candidates are proposed. A ballot or vote is then unnecessary. The requirements in section 188A(1) of the Trade Union & Labour Relations (Consolidation) Act 1992 are otherwise mandatory. The limited references to what is reasonably practicable qualify the fairness arrangements and, where voting occurs, secrecy; they do not provide a general exemption from holding an election. A protective award is discretionary and must reflect the seriousness of the employer’s default.

Mr Phillips appealed against an Employment Tribunal’s unanimous dismissal of claims for unfair dismissal and a protective award following the closure and subsequent restructuring of Xteria Communications Ltd’s Harold Wood site. The appeal included challenges concerning the statutory election of employee representatives under sections 188 and 188A of the Trade Union & Labour Relations (Consolidation) Act 1992, the adequacy of reasons for finding a redundancy situation under section 139 of the Employment Rights Act 1996, and perversity.

The employees had nominated representatives in numbers matching the places available, but no ballot was held. The central issue was whether those representatives had been elected for statutory consultation purposes.

1. Appeal dismissed. The Employment Tribunal correctly concluded that the employee representatives had been elected and that there was no material failure to comply with sections 188 and 188A of the Trade Union & Labour Relations (Consolidation) Act 1992.
2. Sections 188 and 188A aim to secure collective representation by persons chosen by the affected employees. Section 188A sets requirements for a fair election, including arrangements ensuring fairness, an appropriate number of representatives, eligibility, voting rights and accurate counting. It does not expressly require a ballot in every case. Where the number of candidates precisely matches the number of places and no further candidates are proposed, the candidates are elected once fair arrangements have been completed. No ballot or vote is required: paras [27]–[33].
3. The fairness obligation in section 188A(1)(a) protects against employer manipulation. Employees must have a genuine opportunity to propose candidates or require a ballot. The absence of anonymous objections did not invalidate the process on the facts, because any employee could have stood, nominated another candidate or requested an opportunity to vote: paras [31]–[33].
4. The requirements in section 188A(1) are mandatory. Section 188(7)’s provision for reasonably practicable steps applies only to sections 188(1A), 188(2) and 188(4), not to section 188(1B). The references to reasonable practicability in section 188A(1)(a) and (i)(i) do not create a general safety valve dispensing with an election: paras [34]–[38].
5. Any breach would not automatically have led to a protective award. Under section 189(2), the award is discretionary and the protected period must reflect the seriousness of the employer’s default. The guidance in Susie Radin Ltd v GMB was less apposite to a technical defect in an otherwise properly conducted consultation than to a total failure to consult: paras [39]–[44].
6. The reasons challenge failed. The Tribunal’s original reasons, supplemented by its response to the Burns/Barke questions, adequately explained the redundancy situation under section 139 of the Employment Rights Act 1996: paras [45]–[50]. The perversity challenge also failed. Applying Yeboah v Crofton and Williams v Compair Maxam Ltd, the decision was not one which no reasonable Employment Tribunal could have reached: paras [51]–[54].

• Employment Appeal Tribunal: dismissed the appeal against the Employment Tribunal’s decision.
• Employment Tribunal: unanimously dismissed claims for unfair dismissal and a protective award. The Tribunal found that the redundancy process and consultation were adequate and that the employee representatives had been elected.