Once the obligation to consult under section 188 of the TULRCA has been triggered, the requirement under that section is to consult "appropriate" representatives; that is either representatives of the recognised trade union or employee representatives who can either be elected specifically for the purpose of carrying out the consultation or be members of an existing body. In the latter case the representatives must have been elected by the affected employees and have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf.
The recent case of Kelly and Jackson v The Hesley Group concerned a group of approximately 300 care workers who were asked to accept cuts to their working hours, wage freezes and a reduction in overtime payments. Some 32 of the workers refused to accept the changes and the employers terminated their contracts. In so doing the requirements of section 188 were triggered because, as noted above, the Act applies not just in "traditional" redundancy situations but also in situations where the 20 or more dismissals are for any reason not related to the individual.
The EAT confirmed that the burden of proof is on the employer to show that the representatives were appropriate. The EAT also held that the tribunal had failed to consider whether members of a pre-existing consultation body were "appropriate" representatives for the purposes of section 188 of the TULRCA. In particular, the tribunal did not consider the purpose and/or method of the appointment/election. The tribunal had failed to consider that the representatives had no negotiating power and TULRCA requires consultation with a view to reaching agreement. The tribunal had also not assessed the significance of the fact that the constitution of the committee permitted the employer to co-opt members.
The tribunal had also been wrong to speak of the onus being on the employees to suggest alternatives to the employer's proposals. It is the employer's duty to ensure that the consultation takes the form required by the legislation. This means that the consultation shall include consultation about ways of (a) avoiding the dismissals, (b) reducing the number of employees to be dismissed and (c) mitigating the consequences of the dismissals.
The EAT went on to find that it is not enough to provide an opportunity for consultation on the particular topics: if they are not raised by the employees, it is for the employer to raise them. Where a letter is written to satisfy these requirements it is not sufficient if it requires reference to oral discussion; all of the matters should be covered in writing as required by section 188(4). The EAT concluded that the case should be remitted to the same tribunal to be reconsidered.
Comment
This case shows that the requirements of section 188 require strict compliance. Whilst it may be tempting to try and use an existing body for the purposes of consultation the onus is firmly on the employer to ensure that this complies with the strict letter of the law.
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