Kelly & Anor v The Hesley Group Ltd

For collective redundancies, an employer consulting pre-existing employee representatives must prove that the representatives had authority from the affected employees. The tribunal must examine the body as a whole, including the purposes for which representatives were appointed or elected and the method of their appointment.

Consultation under section 188 of the Trade Union and Labour Relations (Consultation) Act 1992 must actively address avoidance, reduction and mitigation of dismissals. An opportunity for employees to raise those matters is insufficient. The employer must also give the prescribed written information; incomplete written disclosure creates liability, although its technical character may affect the award.

The Tribunal declined to depart from MSF v Refuge Assurance: “proposing” dismissals under section 188 arises later than merely contemplating them.

The employer proposed contractual changes at a residential school. Employees who did not accept the changes faced termination and re-engagement on new terms. Thirty-two employees did not accept, and the employer began collective consultation with a group joint consultative committee.

The Employment Tribunal at Sheffield dismissed the employees’ claims for a protective award in Reasons issued on 28 February 2012. It held that the committee comprised appropriate representatives, that the consultation was sufficient, and that a letter of 10 February 2011 met the statutory written-information requirement.

The employees appealed. They challenged the timing of the consultation, the representatives’ authority, the content of consultation, and the adequacy and addressees of the written information.

1. Appeal allowed in part and remitted. The Employment Tribunal made material errors of law on the authority of the representatives, the required content of consultation, and the written information. It had to reconsider liability, any protective award, and its extent.

2. The Tribunal correctly followed MSF v Refuge Assurance plc. Section 188 uses “proposing”, which arises at a later and more certain stage than “contemplating” redundancies. The EAT declined to depart from the established approach, consistently reaffirmed in UK Coal Mining Ltd v National Union of Mineworkers. This ground failed.

3. Under sections 188(1B)(b)(i), 189(1A) and 196 of the Trade Union and Labour Relations (Consultation) Act 1992, the employer bore the burden of showing that the representatives had authority from the affected employees. The Tribunal instead inferred authority from the absence of evidence challenging it. It failed to make the necessary affirmative finding and did not investigate the method and process of co-option.

4. The constitutional exclusion of a negotiating role was relevant. Consultation with a view to reaching agreement is not passive receipt and transmission of information. The Tribunal had to consider whether the purposes and actual operation of the committee gave its members authority to seek agreement on behalf of the affected employees. Examining only the two claimants could not establish that the committee as a body was appropriate.

5. Section 188(2) imposes an employer duty to ensure consultation includes ways of avoiding dismissals, reducing their number and mitigating their consequences. It is not enough to give representatives scope to introduce those topics. The Tribunal’s findings as to opportunity could affect the seriousness of any default and hence an award, but not liability.

6. The 10 February letter did not literally comply with section 188(4). Oral knowledge could not cure the absence of required written information, including adequate reasons and the period over which dismissals would occur. The separate complaint that the letter was sent to the wrong addressees had not been specifically raised below and was not a properly arguable appeal point.

7. The case was remitted to the same Tribunal. Further findings might be required on the representatives’ authority, the consultation’s actual content, other written communications, and any protective award.

• Employment Appeal Tribunal: Appeal allowed in part and remitted to the same Tribunal.
• Employment Tribunal at Sheffield: In Reasons issued on 28 February 2012, dismissed the claims for a protective award.