A recent decision of the EAT has served as a useful reminder to
employers of the dangers of not consulting properly in collective
redundancy situations.
In Lancaster University v The University & College Union
protective awards of 60 days wages were made to employees who had
lost their jobs as a result of fixed term contracts of employment
not being renewed.
The key issues to take from this case are: -
• A reminder that the relevant legislation in this area (section
188 of the Trade Union and Labour Relations (Consolidation) Act
1992) refers to the situation where 20 or more employees are made
redundant at an establishment in Great Britain within a 90 day
period. The term "redundant" must be construed in line with
European legislation, however, to mean any dismissal caused by
factors that are not related to the individual employees. That
would include the expiry of fixed term contracts and dismissal of
employees and an offer to re-engage them on new terms and
conditions of employment.
• 30 days consultation is required before notices of redundancy
are served if between 20 and 99 employees are affected and 90 days
consultation if the figure is 100 employees or more.
• In Lancaster University the employer also thought that the
procedures it was following had been condoned by the employees'
trade union, as a result of it not having raised complaints
previously in similar circumstances. That argument cut little ice
with either the Tribunal or the EAT and 60 days protective awards
were upheld in the EAT as being appropriate.
• In line with established practice the starting point for the
Tribunal was to award the maximum 90 days protective award, even
though this case involved less than 100 employees and would have
required only 30 days consultation. The Tribunal then, correctly,
decided whether and to what extent that award should be reduced to
reflect the steps the employer had taken to comply with its
statutory obligations.