USA v Nolan C-583/10
This case concerned a claim on behalf of employees on a US military base who alleged they had not been consulted soon enough on the closure of the base. The Court of Appeal referred the case to the European Court for a preliminary ruling on when consultation should have begun. The European Court held that it did not have the jurisdiction to respond to the questions referred by the Court of Appeal. Therefore the Court of Appeal will have to make its own mind up on the question of when consultation should have begun in this case. See Bulletin 48 – Winter 2011 for the background to the case. The decision means it is still unclear as to when the trigger point is for collective consultation. The relevant law is found in s.188 of the Trade Union Labour Relations (Consolidation) Act 1992 which implements the European Collective Redundancies Directive and the Directive. Unfortunately the Directive provides that where an employer is contemplating collective redundancies he shall begin consultations "...in good time". The Act provides that the obligation to consult arises when the employer is "proposing to dismiss" the relevant number of employees within the relevant timescale and that it must begin "in good time".
The difference in wording has led to different interpretations of the trigger point. Originally the tribunal found that there had been a failure to consult the workers representatives in good time when in June 2006 the US Authorities gave the representatives a memo stating that all 200 employees would have to be made redundant after a decision to close the base had been made by the secretary of the US Army no later than 13 March 2006. The case will now go back to the Court of Appeal.
Key point: Until the position is clarified in collective redundancy situations, employers should consult on the underlying commercial reasons for the closure of a workplace as soon as practicable.
Competency Bar
Steel v Cumbria Partnership NHS Foundation Trust 2012 All ER 12
This case concerned the imposition by an employer of a competency bar in its restructuring exercise. Mr Steel was one of the displaced staff within the policy and his role was subject to competitive slotting in. He was interviewed and scored for roles within three separate bands but failed to achieve the required minimum score for two higher bands and was not selected for appointment. He did not apply for a role in the lower band. He raised a grievance and ultimately issued proceedings in the tribunal. The tribunal held that no employer acting reasonably would have imposed a competency bar in respect of existing employees in a procedure that was stated to be a method of avoiding compulsory redundancies. The imposition of this was outside the band of reasonable responses available to the employer. Although the employer appealed it was unsuccessful.
Key point: The selection process for alternative roles for existing employees in the confines of a redundancy process must be reasonable.
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