Coffin Mew's Employment News
Welcome
Before most of us depart for the Easter break, I thought that I would squeeze in a quick plug for the Employment Team’s Breakfast Briefing. It takes place from 8am on 18th April at the Rosebowl Cricket Ground (we start talking at about 8.30am for about an hour). The world of social media is having a huge impact on the working environment – the very fact that you are reading my ramblings is evidence of this fact. So, if you want to listen to yours truly spout forth about some of the challenges that emails, Facebook, tweets etc have on the work environment and the practical ways to deal with them, then why not click this link and come along – I’m sure that you will find it entertaining and informative.
Tabytha will also be talking about some of the recent and very important changes in employment legislation and there will of course be bacon sandwiches a plenty and a chance to catch up and network. I look forward to seeing you there!
How about a bit of employment law?
The Legal Bit
In the recent case of United States of America v Nolan, the Court of Appeal and the European Court of Justice (ECJ) have considered the question of the precise point when an employer is obliged to start collective consultation in relation to redundancy situations.
In this case, the Claimant, Ms Nolan claimed that the USA had failed in its obligations to properly consult with employees about the closure of a US military base in the UK (which would lead to over 200 employees being made redundant) until after the decision to close the base had already been made and notified to the UK Government. The key question was whether collective consultation undertaken after the point that the decision was made was sufficient, or whether the consultation process should have started at an earlier stage.
The obligation to carry out collective consultation is contained within the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
TULRCA states that where an employer proposes to make 20 or more employees redundant within a period of 90 days or less it must consult on its proposal with representatives of the affected employees in good time. However, the position is more complicated than this because TULRCA was designed to implement the European law on this area (the Directive). The wording of the Directive is slightly different, providing that where an employer is “contemplating collective redundancies he shall begin consultation with the workers’ representatives in good time with a view to reaching an agreement”.
The difference in the wording between TULRCA and the Directive has lead to conflicting case law on the trigger point for initiating collective redundancy consultation. In the case of Akavan Erityisalojen Keskusliitto AEK and others v Fujitsu, the ECJ decided that the duty to consult under the Directive arises when there is an intention on the part of the employer to make collective redundancies i.e. once the strategic business decision has actually been taken. However, in the case of UK Coal Mining Ltd v NUM, the Employment Appeal Tribunal decided that the consultation must begin sufficiently early to include consultation about the business reasons for making the redundancies, i.e. before the actual strategic business decision had been taken.
In the Nolan case, Ms Nolan was successful in her Employment Tribunal claim. The Employment Tribunal decided that the USA should have started the consultation process before the decision to close the base was made, or at the latest, at the point when the UK government was informed that the base would be returned to the UK.
The USA eventually appealed to the Court of Appeal. The USA argued that the collective consultation obligations only arose after the employer has made the decision to close the workplace and was therefore proposing to dismiss the employees as redundant. In this case, the USA argued that this obligation was not triggered until after the decision to close the base had been made. In light of the conflicting decisions on this point the Court of Appeal requested guidance on this point from the ECJ.
The ECJ effectively decided that neither of the previous cases on this point were right. In the ECJ’s opinion, the obligation to collectively consult arises when a strategic or commercial decision is taken that “compels an employer to contemplate or plan collective redundancies”. Neither of the previous decisions were therefore right – in the ECJ’s opinion consultation would be premature if the consultation was started when an employer was proposing (but had not yet made) a strategic business or operational decision; however, it would be too late if the consultation was only undertaken when that decision had actually already been made.
The case has now been referred back to the Court of Appeal to take a decision, based on the individual facts of this case, as to whether the US initiated the consultation process in good time.
It is clear from this decision that collective consultation must be commenced at a time when there is still a possibility of consultation finding ways of avoiding redundancies, reducing the numbers and mitigating the consequences of dismissals. However, unless and until we get a further decision in this area, the exact timing of when consultation has to start is still pretty unclear – we simply know that consultation must not be too premature (so that you defeat the purpose of consultation by not having definite enough information on which to consult) or come too late (so that you defeat the purpose of consultation as decisions have already been made).
Where there is a gap between the date consultation began and the date the strategic decision was made, it will be for the Employment Tribunal to decide whether the consultation began in good time. There is still therefore unacceptable uncertainty for employers in this area.
As an aside.....
This week, while I was flicking through the pages of the Melbourne Daily Telegraph (as you do), I came across a story in which an Australian estate agent has been awarded compensation from her former employer because she was sacked for ‘looking too young’.
That’s right, she looked too young. Most age discrimination cases relate to employees being treated badly because they are considered to be too old, but not this time. Apparently, the 23 year old estate agent was dismissed because some of the company's directors were concerned that because she looked so young, she wouldn't have the gravitas and presence to negotiate effectively at real estate auctions. To add insult to injury, she was also informed that the directors thought that she was too short as well!!
I have often wondered whether my youthful good looks have had a detrimental impact on my career as well. My work colleagues have actually put it down to my delusional tendencies…..
Until next week.
Kind regards,
Darren
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