Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1717/16

 

 

 

CLAIMANT: University and College Union

 

 

RESPONDENT: Ulster University

 

 

 

DECISION

The decision of the tribunal is that there was a failure to consult with the Trade Union and the tribunal hereby grants a declaration to that effect. The tribunal hereby makes a protective award of 90 days.

 

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Murray

Members: Ms E McFarline

Mrs M O'Kane

 

Appearances:

The claimant was represented by Mr T Brown, Barrister-at-Law instructed by Ms Gavin of Francis Hanna and Co Solicitors.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Ms Flannery of Arthur Cox Solicitors.

 

THE CLAIM

 

1. The claim is by a recognised Trade Union that there was a failure to consult under the collective consultation provisions set out in the Employment Rights (NI) Order 1996 (as amended) ("ERO"). The respondent's case is that the duty to consult did not arise but that if it did, there was consultation and its extent was frustrated by the non-engagement of the Trade Union.

 

THE ISSUES

 

2. The issues at hearing narrowed to the following key issues:

 

(1) Was the duty to consult under Article 216 of ERO triggered?

 

(2) On what date was the duty to consult triggered?

 

(3) Was any consultation that took place compliant with the legislation? In particular did it take place in good time and was it sufficient in that any relevant information was given? Was any consultation genuine with a view to reaching agreement?

 

(4) If the tribunal makes a declaration of failure to consult, should a protective award be made and if so, for what period?

 

(5) It was agreed by the parties that the claimant was a recognised Trade Union. Does the bargaining unit include professorial grades?

 

(6) What are the relevant dates in relation to any consultation period and for any remedy?

 

THE LAW

 

3. Both sides provided written submissions which were supplemented by oral submissions at the submissions hearing. Counsels' written submissions are attached to this decision.

 

4. Booklets of authorities were provided by both sides and all relevant authorities were considered by the tribunal in reaching this decision.

 

5. The collective consultation obligations are set out in the Employment Rights (Northern Ireland) Order 1996 as amended (ERO) at Articles 216 onwards. The key provisions relevant to these proceedings are as follows:

 

"Duty of employer to consult representatives of employees

 

216. -”(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals;

 

(2) The consultation shall begin in good time and in any event-”

 

(a) where the employer is proposing to dismiss 100 or more employees as mentioned in paragraph (1), at least 90 days, and

 

(b) otherwise, at least 30 days, before the first of the dismissals takes effect.

 

...

 

(4) The consultation shall include consultation about ways of-”

 

(a) avoiding the dismissals,

 

(b) reducing the numbers of employees to be dismissed, and

 

(c) mitigating the consequences of the dismissals, and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.

 

...

 

(6)  For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives-”

 

(a) the reasons for his proposals,

 

(b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant,

 

(c) the total number of employees of any such description employed by the employer at the establishment in question,

 

(d) the proposed method of selecting the employees who may be dismissed,

 

(e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect,

 

(f) the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any statutory provision) to employees who may be dismissed.

 

(g) the number of agency workers working temporarily for and under the supervision and direction of the employer,

 

(h) the parts of the employer's undertaking in which those agency workers are working, and

 

(i) the type of work those agency workers are carrying out."

 

6. The remedy available is set out at Article 217 which provides in essence that the remedy available is a declaration together with payment for a protected period of up to 90-days. The guiding principle for a tribunal in assessing the protected period is set out at Article 217(4)(b) which states as follows:

 

"Complaint and protective award

 

217 (4) The protected period-”

 

(b) is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer's default in complying with any requirement of Article 216; but shall not exceed 90 days . . . ."

 

7. The special circumstances defence was not raised by the respondent. (ERO Article 216(9)).

 

8. The claimant did not make the case that there was a technical breach of the provisions in relation to the way any information that was provided was delivered to the Trade Union. (ERO Article 216(7)).

 

9. Whilst in the issues document during the Case Management process, the claimant relied on three alternative dates for the date on which the duty to consult was triggered, at the submissions stage the primary date relied upon was 1 June 2015 in that the claimant argued that the duty was triggered on that date at the latest.

 

10. The legal framework set out in Mr Brown's written submissions which are attached, was agreed by Mr Mulqueen to be an accurate account of the legal framework. In view of this we do not set out in this decision a comprehensive account of all the legal principles but highlight below the principles and extracts from the authorities which are particularly relevant.

 

11. The issue of whether or not the termination of contracts that occurred amounted to dismissals or resignation or mutual termination, is not relevant to the question of whether or not, at the time the duty was triggered, the requisite number of redundancies was proposed. The question of whether the terminations amounted to dismissal is only relevant to whether or not individuals could include themselves in the group to benefit from any protective award which might be paid following any declaration that one is payable. This was the agreed legal position by both sides.

12. In the written submissions for the claimant there is discussion of the scope of the domestic legislation and the scope of the Directive. Mr Brown confirmed that the claimant does not allege that there was a failure to implement the Directive adequately. Mr Brown's point was that the domestic legislation could be read to incorporate the apparently wider scope of the Directive. In oral submissions Mr Brown confirmed that this was not a key point in the case given the way the evidence unfolded at hearing. We note that the domestic legislation was amended to implement the wider scope of the Directive and some of the authorities referred to by the parties predate that widening of scope. In view of our factual findings this is not an issue in this case.

 

13. In the case of Sovereign Distribution Services Ltd v Transport and General Workers' Union [1990] ICR 31(EAT) the following dictum outlines the rationale for the collective consultation provisions. The legislative provisions referred to are replicated in ERO.

"It is important in looking at this part of the Act to bear in mind that it is headed "Part IV Procedure for handling redundancies." As everyone knows redundancies can bring trauma to the individuals concerned. Although in many cases the decision is forced upon management, nevertheless the duty cast upon employers by these sections provides the only opportunity for employees through their recognised trade unions to be able to seek to influence the decision and to put forward other ideas and other considerations, not only as to the overall decision, but as to those individuals who should be made redundant and various aspects which may be material. It is therefore, in order to give them that opportunity, that section 99 was brought into being." (page 33 at F and G) (Emphasis added).

 

14. In the case of Dewhirst Group V GMB Trade Union EAT [2003] the following dicta outline the features of fair consultation in the context of large scale redundancies:

 

"25. The authorities makes clear that the duty to consult is a duty to hold meaningful consultations. We refer to the frequently repeated dictum of Hodgson J in R - v - Gwent CC ex parte Bryant [unreported] cited in, among other places, Middlesborough Borough Council - v - TGWU:

 

"Fair consultation means:

 

(a)     consultation when the proposals are still at a formative stage;

 

(b)     adequate information on which to respond;

 

(c)      adequate time in which to respond;

 

(d)    conscientious consideration by an authority of the response to consultation."

 

H H Judge Clark put the matter in this way (see paragraph 28):

 

"Another way of putting the point more shortly is that fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consultor thereafter considering those views properly and genuinely."

 

We also bear in mind the approval by Glidewell L J of a passage in Harvey in R - v - British Coal Corporation Ex parte - v - Vardy [1993] IRLR 104:

 

"I agree with the passage in the current edition of Harvey on Industrial Relations. In paragraph 1365 the learned editor says:

 

'In substance, the Act places on employers an obligation to plan any redundancy programme well in advance, and to do so in conjunction with the unions where appropriate. Although it is mainly directed at larger-scale redundancies, it should be emphasised that its provisions also apply where the employer proposes to make even one single employee redundant ... However, according to the interpretation so far placed upon the Act by the English courts, the obligation is not so much to consult with the unions on whether there should be redundancies, but rather to consult on how to carry out any redundancy programme which management deems necessary." (paragraph 25).

 

15. In the case of Scotch Premier Meat Ltd v Burns [2000] IRLR 642(EAT) the following dictum sets out the rationale for regarding voluntary redundancy as dismissal:

 

"Given we consider that it is the duty of a good employer facing a redundancy situation in the interest of the whole workforce to consider as at least one option, voluntary redundancies, and call for such, given again that those who accepted such a procedure are benefiting the remaining workforce to some extent, unless as happened here, all are eventually dismissed. It would discourage, in our opinion, that voluntary redundancy being effected or taking place if by so doing the employees lost rights they would otherwise have if they were compulsorily dismissed. We consider it is the proper approach of this tribunal and the employment tribunal to assess the matter in the way most favourable to the retention of rights that the employees have and there can be no greater right than a right to claim unfair dismissal if the redundancy procedure is inadequately handled by the employer." (paragraph 23).

 

16. In the case of Optare Group Ltd v TGWU [2007] IRLR 931 EAT the Court emphasised that the issue of whether a dismissal occurred is a question of causation as set out in the following extracts:

 

"The question of causation can properly be expressed as being "who really terminated the employment" or "who was responsible for instigating the process resulting in the termination of employment". Where people volunteered because invited to do so in circumstances where the employer sought volunteers to mitigate the impact of redundancies, and such facts were established, it would be wrong to go further and investigate each volunteer's individual psychological process and/or motives for volunteering. If it is clear that the employer in an existing redundancy situation has issued an invitation to employees to volunteer for redundancy, that certain of them did so and that, as a result, their employment terminated then that is enough, having regard to the guidance in Burton, Allton and Johnson Ltd v Peck, approved in Birch v University of Liverpool, to enable the tribunal properly to conclude that the cause of their termination was their volunteering to be dismissed. That is not to identify and apply a rule of law, but is a common sense application of the principle of causation to factual situations which arise repeatedly in industry." (headnote).

 

"within the operation of a redundancy procedure, those who volunteer for redundancy will normally be regarded as having volunteered to being dismissed and so will have been dismissed. It points out that this analysis was commented favourably upon by the EAT in Birch and was, in turn, approved and adopted by Lord Justice Ackner in the Court of Appeal." (paragraph 25).

 

17. The following extracts from Harvey are particularly relevant to this case:

On the meaning of redundancy Harvey states as follows:

 

"'Redundancy' for this purpose is very widely defined. A redundancy is a dismissal for any reason not related to the individual employee concerned, or for a number of reasons none of which is related to the individual concerned (TULR(C)A 1992 s 195(1) as substituted). There can thus be a duty to consult about dismissals arising from all sorts of management initiatives to improve organisational efficiency, whether or not the programme involves redundancy in the narrower sense of the redundancy payments scheme. The label is unimportant. The initiative may be dubbed re-organisation, restructuring, regrading, redistribution, streamlining, automation, computerisation, slimming, demanning or a dozen different things. The central question is whether the individual has simply been sacrificed to the needs of the organisation". (paragraph 2524 Division E).

 

18. In the case of Susie Radin Ltd v GMB and Others [2004] EWCA Civ 180 (Court of Appeal) the following summary in the headnote outlines the factors for a tribunal in assessing compensation for failure to consult:

"Employment tribunals should have the following matters in mind when deciding in the exercise of their discretion whether to make a protective award and for what period:

 

(1)           The purpose of the award is to provide a sanction for breach by the employer of the obligations in s.188: it is not to compensate the employees for loss which they have suffered in consequence of that breach.

 

(2)           Tribunals have a wide discretion to do what is just and equitable in all the circumstances, but the focus should be on the seriousness of the employer's default.

 

(3)           The default may vary in seriousness from the technical to a complete failure to provide any of the required information and to consult.

 

(4)           The deliberateness of the failure may be relevant, as may the availability to the employer of legal advice about his obligations under s.188.

 

(5)           How the length of the protected period is assessed is a matter for the tribunal, but a proper approach in a case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the tribunal considers appropriate".

 

19. In the case of UK Coal Mining Ltd v National Union of Mineworkers [2008] ICR the EAT emphasised the punitive nature of the remedy and stated that it was no answer to such a claim to say that consultation would have been utterly futile:

 

" 46 The Court of Appeal has held that this is a penal provision and that "The required focus is not on compensating the employees but on the default of the employer and its seriousness. It is that seriousness which governs what is just and equitable in all the circumstances": per Peter Gibson LJ in Susie Radin Ltd v GMB [2004] ICR 893, para 26. Furthermore, as his Lordship made clear in the same case, at para 43, it is no answer to a failure to consult collectively (as it might be in an unfair dismissal case) that any such consultations would have been utterly futile.

 

Furthermore, the mutual trust which needs to exist between the employer and the Unions, if there are to be successful consultations, is put at risk if the Unions have cause to believe that they have been given false information". ( paragraph 46).

 

20. Harvey states in relation to remedy:

 

"A protective award is essentially a punitive award. Its purpose is to impose a sanction, and an effective sanction, for an employer's failure to observe his statutory duty to consult. Its effect is to entitle the employees concerned to minimum pay for a specified period called the 'protected period' (s 189(3)). Putting it crudely, either the employer consults before dismissing any employees (so that they get their normal wages during the consultation period) or else, if he dismisses prematurely, he risks being condemned to pay them a broadly equivalent amount under a protective award. He pays his money and he takes his choice, but pay his money he must. A protective award is thus a collective award. It is issued to the complainant for the benefit of all or any relevant employees in respect of whom the employer has failed to consult (Smith v Cherry Lewis Ltd [2005] IRLR 86, EAT). Its focus, however, is emphatically not on compensation for them: the focus of a protective award is on the default of the employer and its seriousness ( GMB v Susie Radin at para 26)." (paragraph 2739 Division E).

 

SOURCES OF EVIDENCE

 

21. The tribunal had written statements and oral evidence from the following witnesses:

 

For the claimant:

 

(1)   Ms Katharine Clarke

(2)   Ms Linda Moore

(3) Ms Goretti Horgan

(4) Professor John McCloskey

(5) Dr Suleyman Nalbant

(6) Dr Nuala Rooney

(7) Dr Ian Taylor

 

For the respondent:

 

(1) Professor Alistair Adair

(2) Mr Peter Hope

(3) Mr Ronnie Magee

(4) Mr Andrew Caldwell

(5) Professor Liam Maguire

(6) Professor Jan Jedrzejewski

(7) Dr David Barr

(8) Professor Paul Carmichael

(9) Professor Ian Montgomery

(10) Professor Carol Curran

(11) Ms Ann Newland (written statement only by agreement).

 

22. The tribunal was referred in detail to documentation amounting to approximately 900 pages.

 

FINDINGS OF FACT AND CONCLUSIONS

 

23. Set out below are the tribunal's primary findings of fact drawn from the extensive evidence which was presented. It is important to note that this decision does not record all the competing evidence on all points, but concentrates on the principal findings of fact and conclusions drawn from the extensive detailed evidence which was provided.

 

Amendment issues

24. There was an application to amend the response form at the outset of the hearing by Mr Mulqueen. The application to amend related to an argument by the respondent that the meaning of "establishment" meant that the four campuses in issue in the University should be treated separately rather than as one establishment and that the consequence of this was that there was no duty to consult at all in view of the numbers involved. As Mr Mulqueen decided after submissions to withdraw the application for an amendment at the outset of the hearing, the case proceeded on the agreed basis that the tribunal could look at the University as one establishment albeit that there were four campuses involved.

 

25. Mr Mulqueen made the point that the claimant was restricted in the case it could present to the case outlined in the interlocutory process prior to the hearing in relation to the date relied upon for the triggering of the duty to consult. In looking at this point we note that the interlocutory process in tribunal proceedings is not akin to a pleadings process in the High Court. The point of the process is to ensure that neither side is taken by surprise by a key point being raised by the opposition.

 

26. The evidence presented in tribunal and the cross-examination was in relation to the whole process leading up to the termination of employment of a large group of employees and there was no question of the respondent being taken by surprise or of different evidence being required due to the refinement of the claimant's case as the case unfolded. We accept Mr Brown's point that documents emerged and there were answers to cross-examination questions which refined the claimant's case further and meant that in oral submissions one date was the primary date relied upon rather than the three which were proposed during the interlocutory stage.

 

27. We note that the claim form did state as follows:

 

"The Respondent dismissed 140 members of staff on the 30 ^th April 2016. This came about as a result of the Respondent having to make cutbacks following the announcement of cuts in government funding in October 2014. On foot of this the Respondent embarked on a course of action starting in or around January 2015 to plan a reduced budget and for corresponding reductions in staff. This clearly defined business decision that fewer staff were needed gave rise to the existence of an impending redundancy situation and therefore the obligation to consult with the recognised Trade Unions under Article 216 of the Employment Rights NI Order 1996, was triggered at that time.

 

The Respondent had a statutory obligation to consult the recognised Trade Unions at an early stage of this process and it clearly did not do so in the period between January 2015 and August 2015".

 

28. In our judgement this encompasses the case which was presented.

 

29. We therefore find in this case that the respondent had sufficient information on the claimant's case in advance of the hearing to enable it to gather and present the relevant evidence in rebuttal. We also find that this is not a case where the claimant needs to amend the claim in order to rely on a specific date following the evidence.

 

30. If we are wrong in this we grant the application made by Mr Brown at oral submissions stage for an amendment to the pleadings to enable that date to be relied upon. We note that the authorities state that an amendment can be made at any stage in proceedings including at the conclusion of the case. We invited Mr Mulqueen to make specific submissions on the application to amend and in particular on the balance of hardship test which must be applied to any amendment application which is made at any stage of proceedings. Mr Mulqueen declined to make any specific submissions on this point.

 

Background

31. This case concerns the circumstances which led to a reduction in teaching and other staff in the Ulster University whereby 143 staff left in April 2016.

 

32. The claimant is a recognised Trade Union which at the relevant time represented 600 or more members in the respondent University.

 

33. A principal source of funding for the respondent was the budget given by DEL each year which was communicated in funding letters.

 

34. The respondent's primary submission was that the duty to consult did not arise at all essentially because no dismissals were proposed because a voluntary scheme was envisaged. In this regard the respondent relied on its contention that no dismissals actually took place. If the tribunal found against the respondent on that point, it was common case between the parties that there was a proposal at some point during the relevant period to make redundant 20 or more staff within a period of 90 days and, as a consequence, the duty to consult was triggered at some point. In contention between the parties was the date the duty to consult was triggered, whether any consultation that took place was timely and sufficient, and whether any dismissals actually took place.

 

35. A key to main abbreviations and acronyms is as follows:

 

BRG - Budget Review Group. This was a Management Sub-Group set up by the Senior Management Team in April 2015 to carry out planning for the budget cuts which were recognised to be imminent following three letters from DEL in 2015 which related to funding cuts.

 

JNC - Joint Negotiating Committee

 

JUCNC - Joint Trade Union Consultative and Negotiating Committee

 

REF - Research Excellence Framework. This was a biannual peer review scheme which graded research and was a key indicator of a University's ranking and was therefore very influential in relation to funding and numbers of students.

 

VSS - Voluntary Severance Scheme. This was the title given to the scheme which was devised by Management and which Trade Union side contended was a redundancy scheme.

 

36. Senate and Council are the two governing bodies in the University.

 

37. Professor Adair, who was Acting Pro-Vice-Chancellor at the relevant time, gave evidence of the planning process which takes place annually in the University and stated that the respondent planned annually when they knew the level of funding and when, amongst other things, courses which were underperforming were identified.

 

38. We find that the planning in 2015 (being the year in issue in this case) was, however, different in that the funding cut was of a bigger magnitude than previously and came on the back of several years of funding cuts some of which had been absorbed without staff cuts. This did not therefore involve a case of re-organisation to deal with falling student numbers as had happened in previous years. The numbers and funding issues were such that substantial numbers of staff would have to go and this was well recognised from early on. The "scenario planning" carried out by senior managers in November 2014 outlined the likely effect of a loss of 50, 100 or 150 students.

 

39. In April 2015 (after the third letter that year from DEL relating to funding pressures) Professor Adair and the senior management team established a sub-committee named the Budget Review Group (BRG) to develop proposals to deal with the loss of student and staff numbers which would result from the anticipated further reduction in budget from DEL.

 

40. The terms of reference of BRG were outlined in a report to Senate and it was clear from that that one key driver in the development of proposals was the REF process and the need: "to be able to invest in areas of strength in delivery of our teaching and research objectives while divesting from areas of weakness". The final funding letter from DEL was therefore not crucial to that exercise which clearly envisaged a loss of staff.

 

41. The complexity of the decision making is shown by the "metrics" which had to be considered. The "metrics" are the measures by which the "success" of the University was measured and had an important effect on funding. These metrics included: the REF scores; the National Student Survey; employability rates; UCAS tariff rates; and student retention rates. Other important considerations were, firstly, the need to take account of 4 campuses and to maintain balance in relation to courses and numbers across them, and, secondly, the issue of funding conditions connected to external funding received from organisations other than DEL.

 

42. A paper was produced by a senior manager following the BRG meeting on 21 April 2015 and this outlines the key strategic objective from an early stage in relation to boosting the University's REF scores:

 

"... we need to return AT LEAST 100 extra academic staff in REF2020 functioning at the 3* and 4* level. One way to do this is to support those staff who almost made it into REF2014 but either lacked the quality or volume of outputs. Another way is to invest in new REFable staff through new posts or through replacing leavers with REF returnable staff. I would recommend a mixture of both approaches".

 

43. Later in the same paper the author states as follows:

 

"To do so, we would need to double the amount of research activity and maintain the quality levels as within our top 10 performing Research Institutes. We do not wish to lose those staff who are producing world leading and internationally excellent research. Furthermore, we do not wish to lose those staff who are capturing substantial research grants from prestigious funding bodies that pay overheads or those staff who are having a research impact as defined by HEFCE.

 

However, we have staff in Research institutes that are underperforming either in terms of grant capture or REF profile. Unless, these staff can prove that they can do so or have the potential to do so, they must be removed from the research institute and replaced by higher performing staff. In addition, there are some staff in Schools who have a poor record of teaching quality and research quality. They must be targeted for redundancy and replaced with REFable staff who will also be high quality teachers".

 

44. It was therefore clear from the evidence that, when it was evident that there would definitely be job losses, senior managers took the decision that this could be used as an opportunity to strengthen the respondent's REF research profile by concentrating on certain areas of research to target perceived weaker staff and areas of research and to recruit staff who could contribute to the research profile and thus affect the University's ranking in a positive way. This was the REF process whereby research was submitted to that process periodically and led to a REF score for the University. The claimant did not know that REF considerations were part of the decision-making until after these proceedings were launched by the claimant. From our assessment of the evidence as a whole we find that the inclusion of REF considerations in this process was deliberately kept from Trade Union side.

 

45. On 1 June 2015 BRG decided on what they termed the "big bang". This meant that the job losses which had to take place because of the funding cuts would take place in one go. We find that it was therefore clear on 1 June 2015 that large scale redundancies would take place at one time.

 

46. On 31 August 2015 a joint meeting of Senate and Council (the governing bodies of the University) took place and they gave approval for the detailed BRG proposals which had been developed over the previous months relating to the closure of courses and schools.

 

47. Clearly very difficult and complex decisions were taken by the Deans in relation to closure of some faculties entirely (such as Modern Languages), the closure of some courses, and the reduction in the number of undergraduate students. The cuts of undergraduate numbers were such that it was inevitable that there would be a consequent loss of numerous academic jobs.

 

48. We do not accept any suggestion by the respondent's witnesses that the scenario planning by BRG was part of the normal planning which was done annually. The DEL funding letters were dated 7 February, 30 March, 15 April and 30 July 2015. The funding cut was of such a magnitude that everyone knew that this would lead to large scale job cuts. At the latest, by 1 June 2015 the issues for discussion were in relation to which members of staff would go rather than whether a large number of staff would go.

 

49. It was clear from the documents that the position from DEL funding was that there would be large scale redundancies and everyone knew that the situation could only get worse. We do not therefore accept the respondent's case that it was a requirement for the final funding letter to be received from DEL in July 2015 before matters could be put to the Trade Union. That funding letter contains a caveat whereby it could change even in-year so that further cuts might result. That is what happened in 2015 in that in-year cuts were imposed. There was no suggestion at all in the evidence to us that there was any possibility of the situation improving.

 

50. We therefore reject the respondent's case that any discussions about redundancies which led to the "voluntary" VSS scheme meant that there were no proposals to make redundancies. In essence the respondent argued that because there were no dismissals in prospect that there was not a proposal triggering the duty to consult. We reject that argument and find that redundancies were proposed which triggered the duty to consult. As set out below we also find that the terminations that ultimately resulted were indeed dismissals and that that issue is relevant solely to remedy.

 

Date duty to consult was triggered

51. The authorities do not stipulate a specific time when a proposal crystallises and triggers the duty to consult. A 'proposal' for these purposes needs to be more than a possibility and less than a probability, or a decision. In this case, the issue is whether, and when, there were concrete enough proposals to make the requisite number of redundancies which should have been put to the Trade Union for any ensuing consultation process to have any meaning. We have no hesitation in deciding that there was at some point a proposal to make 20 or more staff redundant within the requisite period and that the duty to consult was thus triggered. The next issue is for us to identify the date upon which it was triggered.

 

52. It was agreed by both counsel that our initial focus had to be in on the date of any proposal and whether at that date 20 or more redundancies were in prospect and that those redundancies would be made within a 90-day period.

 

53. The numbers in issue and the period of 90 days were not in contention between the parties as the respondent agreed that (if its primary submission that the duty did not arise at all was rejected) a proposal existed at some point in relation to the requisite number of redundancies, albeit that the respondent's case was that the proposal crystallised at a later date than 1 June 2015.

 

54. At the outset of the case the dates relied upon by the claimant's side as to when the duty to consult was triggered were January 2015, early April 2015 or 1 June 2015. The claimant ultimately relied in submissions on 1 June 2015 as the latest date that the duty to consult was triggered. The respondent relied on 14 December 2015 being the date when the HR1 form was sent to DETI to put them on notice that multiple redundancies were in prospect. In a meeting with Trade Union side on 31 August 2015 Mr Magee stated that his discussion in the meeting of 31 August 2015 was the beginning of consultation and that was the date inserted by the respondent in the HR1 form. The HR1 form is a form which the respondent was obliged to send to DETI to alert them to proposed large-scale redundancies.

 

55. The HR1 form was sent to DETI by Mr Caldwell on behalf of the respondent in December 2015 and when questioned on this he could not indicate why it was sent at that point. It was entirely unclear to us therefore as to how that form related to whether or not a proposal had crystallised unless it related to a proposal date on 31 August 2015 which was the date relied upon by Mr Magee at the time and was the date inserted in that form. That date was when the BRG proposals were voted upon by Senate and Council. We note that the document outlining the proposals was not actually given to the Trade Unions until 11 September and no reason was given to us for this delay.

 

56. Scenario planning had continued under BRG and had culminated in proposals by the Deans in a paper produced after BRG meeting in April 2015

 

57. The respondent's answer to any delay in the scenario planning amounting to a "proposal" was three-fold:

 

(1) That they had to wait for the DEL letter. As set out below, we reject that point because the decision-making process did not depend on the final funding letter from DEL particularly as REF considerations were a key driver in the decisions being made about who to target for redundancy.

 

(2) That they were refining the closures and reorganisation. As set out below we find that that is precisely what the Trade Unions should have been involved in at a formative stage.

 

(3) That Senate and Council had to approve the plans and this occurred on 31 August 2015. As outlined below we reject that point.

 

58. We prefer the claimant's submissions and find that the duty to consult was triggered at the latest on 1 June 2015 for the principal reasons set out below.

 

59. The point made by the respondent's witnesses was that the respondent had to wait for the final funding letter from DEL before they could be sure that their plans would become a set of proposals. We reject that point. It was clear from the documentation and evidence that funding letters gave details of the funding for the forthcoming year. They were however subject to the caveat that funding could change and this did in fact happen when funding was cut during the funding year in 2015. The fact that funding might change therefore was not definitive in relation to whether or not the scenario planning became a proposal.

 

60. Virtually nothing of substance changed in the paper which was put to Senate from the date it was produced many months before by the Deans aside from the DHSSPS-funded Speech and Language Therapy course.

 

61. The authorities set out in Harvey are clear that the decision-making process which was alluded to in the evidence in this case, is not a bar to the duty to consult being triggered. It is not the case that the final decision-making body must ratify proposals before the duty to consult is triggered. The legal position is that HR managers (in this case the Deans and senior managers) have delegated authority to formulate proposals and those proposals can crystallise triggering the duty to consult before they are signed off by the decision-making body. We find that there was therefore no requirement in this case to wait for the Senate and Council decision on 31 August 2015 to enable the proposals to amount to proposals in law in relation to the duty to consult.

 

62. It is our finding that the duty to consult crystallised, at the latest, on 1 June 2015 given the history of funding cuts and cuts to student numbers. By that date it was clear, not only that substantial job cuts would be necessary and that this would involve a large number of redundancies at one time, but the faculties, schools and courses to be targeted had also been finalised.

 

63. Mr Brown put forward a point that the closure of schools amounted to the closure of a workplace and that the duty was triggered once that decision was made in line with the NUM case. We find that it is not central to our decision-making to decide on this point given our findings and conclusions on the relevant dates. If it is necessary for us to determine this point we find that the closure of a school was analogous to work of a particular kind no longer being required. This is an element of the definition of redundancy which is referred to elsewhere in ERO. It is our view that this is a better conceptual fit rather than the concept of closure of a workplace as, in this case, all of the campuses remained open albeit in a slimmed-down form.

 

Engagement with TU side

64. The decision to make redundancies is a management decision. The method by which the redundancies would be achieved is the focus of any consultation process. The rationale behind a consultation process is that when there are proposals to make redundancies then the Unions must be involved in meaningful consultation with a view to reaching agreement. If agreement is unlikely or is ultimately not reached, that is not to the point.

 

65. There were some references in the evidence to a reluctance of the Trade Union to be involved in redundancy exercises in the past. There was also reference to the Trade Union's refusal to go to a meeting in September shortly after they received the written proposals on 11 September 2015. This appears to be an argument that it would have made no difference if they had consulted. This is irrelevant to our deliberations on liability. There is a statutory obligation to consult and any prior non-participation by the Trade Union is not an answer to any failure to comply with that statutory obligation.

 

66. The respondent's case in essence was that if the duty was triggered the respondent then tried to engage with the Trade Union. The respondent's case was that it was the Trade Union which frustrated the process by not attending a meeting arranged for 16 September 2015 and it was at that meeting that detailed consultation would have occurred. We reject that argument. By the time the Trade Union refused to engage with the respondent they were justified in our judgement to do so given the following:

 

(1)           They were presented with a fait accompli ie finalised detailed decisions, which in reality could not be changed, rather than proposals which could be consulted upon. The proposals document which had been formulated following input from the Deans and senior management team and BRG was sent to the Unions on 11 September 2015 but was in final form at the end of August 2015 and was largely unchanged from its form in January 2015.

 

(2)           VSS had already been formulated and was opened to staff from 1 September 2015. This was a redundancy programme into which the Unions had no input. The only change of substance was that the Speech and Language Therapy course was not closed due to a veto by DHSSPS which, as the funding body for that course, had to be consulted in or around July 2015.

 

(3) There was no prospect of changing the decisions that had already been made and ratified by the Senate and Council following a lengthy period of refinement by the Faculties, Deans and senior management.

 

(4) The protests of the claimant Trade Union and its requests for information and consultation had been rebuffed to the extent that they had been actively misled about the extent of the planning and the decisions that had been made without reference to them.

 

67. On 2 September 2015 the claimant Trade Union requested that VSS be postponed pending receipt of information:

"... we would request the following: a full business case for the proposals overall, with full information regarding the effects the proposals would have on numbers of staff and students and the balance of curriculum on the four campuses of the university; a copy of the Equality Screening; your plans to consult with the trade unions on the voluntary severance package, or your confirmation that this is being imposed rather than collectively agreed.

 

We would further request that the proposed timeframe be amended in order to fulfil management's responsibility to engage in meaningful consultation. It is impossible to carry out consultation about the proposals as a whole in good faith parallel with meetings with individuals to discuss their potential exit. We would therefore request that the proposed one to one meetings do not commence until after the 90 day consultation period has elapsed. It is in the best interests of our members and of future industrial relations at Ulster for us all to work through this situation according to law and best practice, and we very much hope to be able to report to our members and to the media that we are working closely and meaningfully with the management on avoidance, reduction and mitigation of the redundancies".

 

68. On 4 September 2015 Mr Magee's email in response to the Trade Union states as follows making reference to his meeting with them on 31 August 2015:

"In terms of the point re Consultation, I wish to clarify the question asked at Monday's meeting by Linda, if memory serves me right, was ... "is this the beginning of formal consultation with the trade unions?" And I responded yes it was. Consultation with trade unions is not time bound. What is important in respect of consultation with trade unions and staff in redundancy situations is that when an employer selects individuals for redundancy and specifically the date by which the redundancy will take effect then it is important to comply with the statutory provisions and notice period and consultation. It is important to remember even at this early juncture that the University has not selected any person for redundancy at this point and no at risk letters have been issued or served to anyone".

 

69. We do not in these circumstances criticise the Trade Union for refusing to engage further with the employer. Their position was that they refused to lend legitimacy to a sham process. Using the terminology in the legislation and authorities we find that it cannot be said that the Trade Union was presented with plans which were at a formative stage.

 

Length of consultation period

70. The 90-day period for consultation is a minimum period set out in the legislation. The authorities are clear that this can be increased depending on the circumstances and the complexity of the redundancy exercise.

 

71. In this case we would have expected a substantial period of consultation in excess of 90 days prior to the proposed date of terminations because of the complexity of this redundancy process which related primarily to the following matters:

 

(1) The fact that 4 campuses were involved, the fact that some courses were spread across several campuses, and the requirement to have equitable campus distribution;

 

(2) The "metrics" in issue (ie the various and diverse indicators used to rank Universities) in relation to the University's ranking;

 

(3) REF considerations in particular;

 

(4) Funding considerations (aside from the DEL funding), for example the DHSSPS funding and the Peace Funding from the USA;

 

(5) The limited scope for redeployment as there was a recognition by everyone as at 31 August 2015 that redeployment opportunities were very limited indeed.

 

72. It is our finding that the Trade Union should have been involved in this process at an early stage shortly after 1 June 2015 for consultation to have any meaning.

 

Timeliness and sufficiency of information

73. The issue of timing and whether consultation was genuine with a view to reaching agreement are to a large extent intertwined in this case. The Trade Union was presented with a fait accompli with insufficient time and insufficient information for them to formulate counter proposals. The fact that REF was a key consideration in deciding who to target was also in our judgement deliberately withheld from Trade Union side.

 

74. Proper consultation involves consulting on ways of avoiding dismissal, on reducing the numbers to be dismissed and on mitigating the consequences of dismissal with a view to reaching agreement. The Trade Union has to be provided with enough information in order for that to be meaningful.

 

75. In this case the Union's request for information on 30 April 2015 stated:

 

"Over the past week we have been in contact with members in several different schools who tell us that they have been informed by managers at various levels that courses in their schools are ear-marked for closure, whole schools may close and job losses in certain areas are 'imminent'. These members are obviously extremely anxious about their futures, professionally and personally.

 

UCU is concerned that there appears to be a failure to consult with the recognised trade unions representing the affected staff. You will be aware that under Part XIII of the Employment Rights Order 1996 you are required for the purposes of redundancy consultation to advise of the reasons for proposals to effect job losses, the numbers and descriptions of employees whom you propose to dismiss, and to enter into meaningful consultation about avoiding dismissals, reducing the number and mitigating the consequence of dismissal.

 

In circumstances where our members are being told courses are to close UCU cannot see how this is not a redundancy situation.

 

Please update us urgently on the latest situation. At best we would consider it a breach of trust should we once again learn of developments through the media, which as you are aware has happened on two occasions in the past year. At worst, we are concerned there might be a breach of statutory consultation obligations. You will understand that we need to be in a position to reassure our members. Given the urgency of the matter, we would appreciate your response in writing at the earliest opportunity".

 

76. This was met the next day with a response from Mr Magee stating that:

 

"I can confirm to you that the Senior Management Team have not yet received any proposals from Faculties re course closures or redundancies, potential or otherwise. What is happening is that faculties are beginning to examine the potential and that is why conversations are beginning to happen. However obviously as per our existing protocols with the recognised trade unions, when proposals emerge then I will sit down with you to discuss those proposals.

 

I trust this is useful to you".

 

77. By that stage the Deans and senior managers had been analysing the figures and statistics in order to formulate detailed proposals driven by REF considerations. We therefore find that the Trade Union, far from being consulted was actively misled, when they sought information after hearing rumours that there were to be job cuts. Mr Magee's email to them stated that there were no plans when in fact firm decisions had already been made to close courses and schools and these decisions for the most part were ultimately implemented.

 

78. In the respondent's own policy on redundancy entitled University of Ulster Redundancy Policy and Procedures it states as follows in relation to collective consultation:

 

"When considering restructuring and/or reductions in staffing levels in a work area, which could lead to redundancies, the University will consult and enter into discussion with representatives of the Recognised Trade Union(s). The issues which make change necessary and the timescale for consultation will be clearly outlined at that stage to the relevant Trade Union. The timescale will allow Recognised Trade Union(s) time to consider proposals, seek views and make representations. This timescale will depend on the particular constraints of each case and these constraints will be clearly highlighted in the consultation". (emphasis added).

 

79. The University's own redundancy policy therefore states that consultation is required when redundancies are under consideration. This underlines the level of obligation placed by the respondent on its senior managers in relation to assessing when it was proper for them to start consultation. This point is also relevant to remedy.

 

80. We therefore find that the Trade Union could have been given information at a much earlier stage and certainly not much later than 1 June 2015 when the duty to consult was triggered. The fact that the respondent did not do so meant that they failed to consult in good time.

 

81. The thrust of the evidence presented by the respondent was that the trade Union side was kept informed generally and that consultation and engagement was ongoing particularly after 31 August 2015 following ratification by the Senate and Council of the proposal document produced by the Deans.

 

82. However the following email sent from Mr Magee on 16 September 2015 gave inadequate information and did not reveal that REF considerations were the key driver in relation to who was chosen to be targeted for VSS:

 

"You highlight two aspects of the proposals in which you are seeking additional detail i.e. REF results and student/staff ratios. The REF results are in the public domain and requests for staff student ratios can be provided of course, however a review of the rationale provided at both University and Faculty levels reveals the impact of the reduction in MaSN together with financial cuts and the future strategic direction of the faculties are the dominant factors in these decisions. Today's requested meeting of the JUCNC is to facilitate you as union representatives to explore this further with each Dean as part of the consultation process".

 

83. In the same letter Mr Magee rejects the request that VSS be postponed.

"Your demand that the 'VSS is postponed with immediate effect until the employer formally notifies the recognised trade unions is commencing its statutory obligations to consult for 90 days and exhausts that process' again shows a clear misunderstanding of the legislation to which you refer. Let me be clear that the University is in a voluntary process at the moment. There is no question of postponing this process and as you are well aware, the consultation process has already commenced. The 90 days referred to in the legislation relates to the period of consultation prior to notice to terminate employment is issued. The University has not issued any such notice to date, however, although we are currently in the consultation process with the trade unions, this does not prevent the University from fulfilling its obligations to also consult with individual staff in areas affected by the proposals which includes making them aware of the options available to them, including voluntary redundancy".

 

84. We find the respondent's failures to amount to egregious failures especially in circumstances where one key consideration in the decision-making process (before the Trade Union were involved in any way) was that staff should be targeted according to REF considerations. The purpose of this was to get rid of perceived weaker staff and to boost the REF profile in readiness for the REF 2020 score. The Trade Union did not know about this key point until after these proceedings were issued in the tribunal. In submissions the respondent's position was that this information was not required information and they therefore did not have to share it with the respondent. We reject that argument.

 

85. We find that the REF element of the decision-making was relevant information under Article 216(6)(a) and (d) as this related to the interlinked reasons for the proposals to make redundancies and the proposed method of selecting the employees who might be dismissed. This information also related to Article 216(6)(b) as it concerned the numbers and descriptions of employees whom it was proposed to make redundant.

 

86. We therefore find that failure to provide that information was, of itself, a serious failure to comply with the obligations to consult as set out in ERO once the duty was triggered as this was information which was central to the decision-making and to the formulation and implementation of the VSS Scheme.

 

Dismissal

 

87. A key issue is whether or not those who availed of VSS were dismissed or whether they left by way of consensual termination. The authorities are clear that the presumption is that, in a voluntary redundancy situation, those who take voluntary redundancy are dismissed. It was agreed that the dismissal issue is relevant solely to the issue of identifying the group of individuals who can expect a remedy ie only those who were actually dismissed on a specific date.

 

88. We have no hesitation in finding that the VSS scheme was a redundancy scheme and that those who took it were dismissed. We so find for the following principal reasons:

 

(1) The VSS scheme emerged in the context of proposed redundancies. Everyone in management recognised that substantial numbers of staff would have to go because of the funding gap and the purpose of VSS was to achieve that quickly by targeting staff in order to further the respondent's strategy as regards strengthening their REF profile.

 

(2) If the VSS did not achieve enough numbers then compulsory redundancies would inevitably result.

 

(3) The respondent's case, that this was a voluntary severance scheme, was fatally undermined by the fact that, rather than opening VSS to all staff, particular staff were targeted and invited to make applications for VSS.

 

(4) This targeting was underlined by the fact that in one-to-one consultations those staff were told that if they did not take VSS they would lose their jobs anyway or schools would close and they would then receive a statutory redundancy payment which was much lower than the payment applicable under the VSS. We find that this clearly introduced pressurisation or coercion to the process and we therefore find that the process could not be compared to the early retirement scenario of consensual termination referred to in Birch.

 

(5) Staff had to consider whether to go for VSS in a vacuum as no information had been forthcoming to their Trade Union representatives prior to the opening of the VSS scheme on 1 September 2015.

 

(6) The respondent's senior managers themselves regarded it as a redundancy scheme as the terminology in a number of documents reflects that belief and understanding on their part.

 

(7) Once they became aware of VSS (on the day it was offered to the staff concerned) the relevant Trade Unions, UCU and Unite, made pleas to open the VSS to all staff and these were immediately rejected.

 

89. The claimant in correspondence to the respondent termed the targeting as "putting a gun to the head" of the targeted staff. We agree with that assessment. In no way was it consensual for individuals to be targeted in this way and then to be told in one-to-one meetings that if they did not take the offer that they would go anyway but with a much reduced payment.

 

90. The fact that it transpired that statutory redundancy was not paid to the three staff who were made redundant compulsorily is not relevant to our deliberations on dismissal. Similarly the fact that the terms of VSS were generous is irrelevant to the issue of whether the staff who took VSS were in fact dismissed.

 

91. The Birch case was relied upon by the respondent on this point of whether the terminations were dismissals. We note that the Birch case concerned a retirement scheme and we find that a key point of distinction is that there were several references in that case to there being no question of pressurisation or duress when staff were assessing whether to go for the retirement scheme. In the current case there was clearly duress placed on the staff who were targeted. This is a case where volunteers for redundancy were not only "volunteering for the firing squad" (as termed in Harvey) they were being told "volunteer or else". This was coercive.

 

92. There was no need for such a short timescale between VSS opening and the irrevocable acceptance of it by individuals. The intention was to actually effect the redundancies as at 30 April 2016 and we conclude that the aim of imposing a deadline of 31 January 2016 was probably to put individuals under pressure to accept VSS.

 

93. As a result we find that the 143 staff who took VSS and left in April 2016 were dismissed.

 

Bargaining Unit

 

94. We find that that the 143 staff who took VSS and left in April 2016 constitute the bargaining unit and include the Professors. Our principal reason for so finding is that in the respondent's own replies they outline the Professors as constituting members of the relevant bargaining unit. It was Mr Magee who suggested that Professors were not included. This was at odds with the replies, was raised for the first time in his evidence and we reject it given our adverse view of his credibility generally.

 

Credibility and motive

 

95. The respondent made the point that there were issues with the credibility and motivations of several of the claimant's witnesses. The respondent further made the point that the fact that more people were not called to give evidence to us on the circumstances and reasons for them taking the VSS was something from which we should draw an adverse inference of some sort.

 

96. We reject the respondent's arguments on these points. We find that the credibility points made by respondent were not central to our assessment of the claimant's witnesses given the nature of this case. In other words, the duty to consult, the date it was triggered, and the timeliness and sufficiency of consultation did not depend on the credibility or otherwise of those witnesses. The issues of whether dismissal occurred was determined by us on the documentary evidence and that of the respondent's own witnesses and, in the event, the credibility of the claimant's witnesses was not key to that assessment.

 

97. Credibility however was relevant in relation to the evidence of Mr Magee who averred that in the one-to-one consultation meetings staff were not told that if they rejected VSS they would lose their jobs anyway and would only receive statutory redundancy. We reject Mr Magee's account as it was at odds with the documents and with the evidence of the respondent's other witnesses who actually conducted the one-to-one meetings. Mr Magee was not in attendance at any of them. This tainted Mr Magee's reliability and credibility. We also found Mr Magee to be generally evasive and lacking in credibility in answering questions. His credibility is relevant to any points in mitigation as regards remedy.

 

98. We find that Mr Magee also misled the Unions when they were asking about information when he stated that the Deans had not considered certain points when they had in fact made concrete proposals to close some courses entirely, to close some courses at certain campuses and to make staff redundant following a closure of schools and faculties

 

99. We accept the evidence of Professor McCloskey and find that the points which Professor McCloskey changed or clarified in his evidence to us were not central to his evidence on the issues before us. We find that Professor McCloskey's oral evidence, in particular, showed the depth of feeling involved where staff were told that decisions had been taken to close areas of research, to close schools, or that jobs would go when no consultation about these decisions had taken place. Professor McCloskey gave undisputed evidence as to why his area of research was of high calibre, productive and profitable. He gave clear and convincing evidence, which we accept, that he was reluctant to take VSS but felt that he had no choice.

 

100. The way Professor McCloskey and his colleague Dr Nalbant were treated illustrates the deeply unsatisfactory consequence of the lack of consultation in this case. Professor Curran, Dean of the School of Environmental Sciences, gave a presentation to her school and said that the School of Geography would be closed because of adverse REF scores which meant, essentially that the School's REF score for research was deficient. Closure of the whole school meant that, as a consequence, the Geophysics Research Group (which comprised only Professor McCloskey and Dr Nalbant) was closed.

 

101. This was announced at an open meeting and was the first indication that
Professor McCloskey and Dr Nalbant had that they would likely lose their jobs because their school was being closed. As it was announced in the context of closure of schools and courses because of concerns about research, they regarded it as an unjustified slight on their area of research when in fact their area was regarded as very high calibre, it attracted funding, and was of international renown with a REF rating of "outstanding". In these circumstances we can understand why Professor McCloskey reacted so strongly to the way this was communicated to him. Professor McCloskey secured substantial finding for his research which he now conducts for the University of Edinburgh.

 

102. In the statement from Ms Horgan (a UCU Union representative at the relevant time) she outlines, in a nutshell, the effect of lack of consultation on the process:

 

"By ostracising the Union they excluded staff from providing their expertise on how redundancies could have been avoided as we are experts in our own fields. By excluding the Union they were short sighted as the knowledge of the lecturing staff could have provided solutions and alternatives, however it was never up for consultation".

 

103. We note that the proposal to close the Speech and Language Therapy course was one of the few proposals to be changed in the proposals put forward by managers and it occurred due to what was effectively a veto from the relevant Department. In that instance the Department had to be consulted because of a specific funding issue. This occurred well before the proposals were put to Senate in August 2015 and this showed us that there was scope for re-organisation or listening to a consultee when the decision-making process was revealed to it. From this we conclude that consultation with the claimant Trade Union could have taken place if the will to consult had been there.

 

104. We find from an assessment of all the evidence over the lengthy period to which we were referred that there was very little will on the respondent's part to engage with the Trade Unions and, indeed the Trade Union was misled on key points. We were repeatedly given evidence by the respondent that the Trade Union had previously failed to engage meaningfully in previous redundancy exercises. Essentially the picture painted by the respondent' managers was that there would have been no point in engaging because the Trade Union had made it clear previously that they would not be engaged in choosing which of their members to be made redundant. We reject this point by the respondent as the consultation which was lacking in this case would not necessarily have involved the Trade Union in targeting individuals.

 

105. We completely reject as irrelevant any argument by the respondent that consultation would have made no difference because of a previous alleged attitude of non-engagement by the claimant. This point is irrelevant to whether or not the duty was triggered, whether or not there was consultation in good time, and whether or not relevant and sufficient information was provided when proposals were at a formative stage with a view to agreement. This may however be relevant to remedy (see below).

106. We hereby make a declaration that the respondent failed in its statutory obligations, there was a failure to consult in good time or at all given the withholding of key information, and this was in breach of the relevant provisions of ERO.

 

107. We find that the relevant bargaining unit was all 143 staff who were dismissed in April 2016.

 

Length of consultation

108. The point at which the proposal crystallised and the duty to consult was triggered in this case was 1 June 2015 at the latest and at that point the relevant date for calculation purposes is the date when the terminations are proposed to take effect. The date proposed at that point for the redundancies to take effect was 31 December 2015. The relevance of that date is that one works backwards for the 90 day period to establish when the consultation should have started at the latest. Working 90 days back from 31 December 2015 brings us to 30 September 2015. This is latest date by which the consultation should have started.

 

109. The respondent therefore could, and should, have started to engage meaningfully with the Trade Union from that point and that consultation should have started no later than 30 September 2015. This was a particularly complex situation (as set out at paragraph 71 above) so in our judgement consultation could and should have started earlier i.e. soon after 1 June 2015.

 

110. VSS opened on 1 September 2015, specific individuals were 'invited' to apply, and applications had to be in by 30 October 2015. Individuals whose applications were approved had to confirm acceptance by 31 January 2016 with termination of their contracts envisaged for 30 April 2016. The claimant relied upon 31 January 2016 as equivalent to notice being given of the date of termination as this was when there was an irrevocable decision to accept VSS. In line with the reasoning of the ECJ in Junk, the point was that this was effectively the start of each individual's notice period. The significance of that date in this case is that that is the date relied upon by the claimant by which the consultation had to be completed and this point relates to whether consultation was adequate.

 

111. We accept the point made by Mr Brown that the 31 January 2016 date is tantamount to the date notice began. As VSS was irrevocable by that stage, consultation beyond that point would have been meaningless. We find that consultation therefore had to be completed by that date.

 

112. The authorities are clear that the consultation has to be completed by the date that notice is given. The date of the actual termination in this case was 30 April 2016 and that date is therefore not relevant for the purposes of the determining the date for completion of consultation. The rationale behind this is that, in reality, consultation with a view to reaching agreement on saving jobs or amending terms for redundancy can have little meaning if the notices of termination have been sent out and staff are already working their notice.

 

113. The EDT (effective date of termination) referred to in the settlement agreements which were signed by those who took VSS is not relevant to our deliberations on any dates for the purposes of calculating the consultation period.

 

Remedy

114. On remedy both sides agreed that it is the respondent which bears the burden of proving mitigation. It was therefore for the respondent to provide evidence or argument to support a reduction from the 90 days set out in the legislation.

 

115. The claimant's side urged us to award the full 90 days protective award because no points were put in mitigation by the respondent. The respondent's position on this was that there should be no award at all as the attempts to consult were frustrated by the claimant's side and that respondent should also be given credit for engagement with Trade Union from 2014.

 

116. Given our findings that consultation did not start in good time and when it did purportedly start that a fait accompli was presented to the Union, we find that this is a case of failure to consult at all. Two key points for us in assessing this are, firstly, that the Trade Union had been actively misled by Mr Magee in relation to the advanced nature of the decision-making process and, secondly, that the Trade Union was never told that REF considerations were central to the decision-making and targeting as this was not referred to until after these proceedings commenced.

 

117. We note that the authorities make clear that the assessment of remedy is not related to any loss suffered by any individual nor is it related to the motivations that individuals might have for taking redundancy. The thrust of the authorities and the legislation is that this is a sanction to penalise a respondent for failure to consult adequately, in time, or at all. We were told the amount of money received by several of the claimants' witnesses under the VSS Scheme. In common with any redundancy scheme, the amount of money provided varied according to the level of each person's salary. We find it completely irrelevant to our deliberations to take account of how large or small any payment for redundancy was.

 

118. The authorities are clear on remedy that a benign motivation or genuine ignorance of obligations is not necessarily a point in mitigation justifying a reduction of the maximum period for compensation given the punitive nature of this remedy.

 

119. In mitigation the respondent appeared to rely on the Trade Union's failure to engage. As we have rejected that and we accept the Trade Union's reasons for that, this is a not a point in mitigation to reduce the 90-day period. We also find that the Trade Union did not frustrate the process. The onus is these situations is on management side which has all the information. VSS had been opened and the respondent refused to put it on hold following the Trade Union's reasonable request to do so. This showed to us how far along the process was in relation to decision-making, in that decisions had been made and were essentially irrevocable at that stage.

 

120. The respondent referred us to voluminous documentation relating to meetings of the JNC and the JUCNC from 2014 onwards. Effectively these were committees which included management and Trade Unions, the purpose of which was to apprise the Trade Unions of matters relevant to the running of the University. The respondent's point appear to be that these minutes of meeting showed that there was active engagement with the Trade Unions and that there was not a lack of willingness to engage with them.

 

121. We find it noteworthy however that despite the existence of these committees and their regular meetings, key information was kept from the Trade Unions and we infer from that that there was a deliberate unwillingness to consult with the Trade Union side about the ongoing decision-making.

 

122. Some of the evidence in cross-examination appeared to explore the motivation of managers. It was clear from the evidence of the respondent's witnesses that issues to do with complying with consultation obligations were left entirely to Mr Magee as head of HR. The level of unrest amongst staff was such at the relevant period and the protests of the Trade Union were so strong that there was an obligation on the senior managers as a whole to address their minds to what was being raised by the Trade Union. In the event the Trade Union side was, in our judgement, deliberately kept in the dark by senior management and this was clear to us from the documentation which emerged in the course of these proceedings.

 

123. The issue of whether or not the respondent wilfully or innocently failed to consult earlier is not relevant to our deliberations on whether or not the duty arose, the point at which it arose and whether it was complied with. It could however be relevant to remedy in assessing whether this was an inadvertent failure or whether it had a deliberateness about it.

 

124. We also take into account the fact that this is a large organisation with a HR Department with access to information and, presumably, to legal advice on the respondent's obligations. It was clear that Mr Magee knew (as shown in his letter of 9 October 2015 to UCU) what had to be consulted upon in order to comply with the respondent's statutory obligations. Numerous documents and meetings were generated by the decision-making process leading up to the termination of these posts and at one point there was detailed discussion by managers of a communications strategy. We find it very telling that there was no reference at all in that communications strategy to any engagement with the Trade Unions.

 

125. We also find it significant that the date that the proposals were revealed to the Trade Union verbally on 31 August 2015 was the same date that they were revealed to the Press. In fact the Press had more details at earlier stages about course closures than the Trade Union had.

 

126. It is clear to us that there was a poor relationship between management side and the Trade Union and the process in this redundancy exercise has led to palpable bitterness on the part of both the staff who went and those who stayed.

 

127. In this case it is relevant for us to reach a conclusion on the motivation of managers for failure to consult: whether it was their incompetence, whether it was due to their ignorance of legal obligations or whether it was due to their belief that because of previous non-engagement or opposition by the Trade Union that they did not have to try to engage. We find on an assessment of all the evidence that this was a deliberate failure to consult in that management wanted to keep the Trade Union side in the dark probably because of the poor relationship with them and because of the concentration on REF considerations which would have been controversial if revealed.

 

128. In all of this the Trade Union was in an invidious position for months where its own members were asking what was happening because they were being told locally that their schools or courses were closing, there were press reports to that effect, and the Trade Union was unable to give any assurance that members' concerns or views were being put forward in the formulation of redundancy plans as they had received no information despite their repeated requests.

 

129. Taking account of the above matters we find this to be a very serious failure to consult at all warranting the full protective award. We therefore find that a 90 day protective award is the appropriate remedy for those in the bargaining unit.

 

130. The Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 (as amended) ("the Regulations") set out the recoupment provisions which apply to this decision. The Regulations set mandatory steps which must be followed before payment of any protective award is made.  The Recoupment Notice annexed to this decision is hereby incorporated into this decision.

 

 

 

Employment Judge

 

 

Date and place of hearing: 9, 12, 13, 14, 15, 16, 19, 20, 21, 23 June 2017 and

15 August 2017 at Belfast

 

 

Date decision recorded in register and issued to parties:

 

 

 

See Appended

 

 

 

 

Case Ref No: 1717/16IT

 

CLAIMANT: University and College Union

 

 

RESPONDENT: University of Ulster

 

 

ANNEX TO THE DECISION OF THE TRIBUNAL

 

Recoupment Notice

 

[1] In the context of this Notice, "the relevant benefits" are jobseeker's allowance, income support and income-related employment and support allowance.

 

[2] Until a protective award is actually made, an employee who is out of work may legitimately claim relevant benefits because, at that time, he or she is not (yet) entitled to a protective award under an award of an industrial tribunal. However, if and when the tribunal makes a protective award, the Department for Communities ("the Department") can claim back from the employee the amount of any relevant benefit already paid to him or her; and it can do so by requiring the employer to pay that amount to the Department out of any money which would otherwise be due to be paid, to that employee, under the protective award, for the same period.

 

[3] When an industrial tribunal makes a protective award, the employer must send to the Department (within 10 days) full details of any employee involved (name, address, insurance number and the date, or proposed date, of dismissal). That is a requirement of regulation 6 of the Regulations which are mentioned below.

 

[4] The employer must not pay anything at all (under the protective award) to any such employee unless and until the Department has served on the employer a recoupment notice, or unless or until the Department has told the employer that it is not going to serve any such notice.

 

[5] When the employer receives a recoupment notice, the employer must pay the amount of that recoupment notice to the Department; and must then pay the balance (the remainder of the money due under the protective award) to the employee.

 

[6] Any such notice will tell the employer how much the Department is claiming from the protective award. The notice will claim, by way of total or partial recoupment of relevant benefits, the "appropriate amount"; which will be computed under paragraph (3) of regulation 8 of the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996 (" the Regulations").

 

[7] In the present context, "the appropriate amount" is the lesser of the following two sums:

 

(a) The amount (less any tax or social security contributions which fall to be deducted from it by the employer) accrued due to the employee in respect of so much of the protected period as falls before the date on which the Department receives from the employer the information required under regulation 6 of the Regulations, or

 

(b) The amount paid by way of, or paid on account of, relevant benefits to the employee for any period which coincides with any part of the protected period falling before the date described in sub-paragraph (a) above.

 

[8] The Department must serve a recoupment notice on the employer, or notify the employer that it does not intend to serve such a notice, within "the period applicable" or as soon as practicable thereafter. (The period applicable is the period ending 21 days after the Department has received from the employer the information required under regulation 6).

 

[9] A recoupment notice served on an employer has the following legal effects. First, it operates as an instruction to the employer to pay (by way of deduction out of the sum due under the award) the recoupable amount to the Department; and it is the legal duty of the employer to comply with the notice. Secondly, the employer's duty to comply with the notice does not affect the employer's obligation to pay any balance (any amount which may be due to the claimant, under the protective award, after the employer has complied with its duties to account to the Department pursuant to the recoupment notice).

 

[10] Paragraph (9) of regulation 8 of the 1996 Regulations explicitly provides that the duty imposed on the employer by service of the recoupment notice will not be discharged if the employer pays the recoupable amount to the employee, during the "postponement period" (see regulation 7 of the Regulations) or thereafter, if a recoupment notice is served on the employer during that postponement period.

 

[11] Paragraph (10) of regulation 8 of the 1996 Regulations provides that payment by the employer to the Department under Regulation 8 is to be a complete discharge, in favour of the employer as against the employee, in respect of any sum so paid, but "without prejudice to any rights of the employee under regulation 10 [of the Regulations]".

 

[12] Paragraph (11) of regulation 8 provides that the recoupable amount is to be recoverable by the Department from the employer as a debt.