United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	ANTHONY SENDALL (of Counsel) Messrs Lovell White Durrant Solicitors 65 Holborn Viaduct London EC1A 2DY


 


MR JUSTICE MORISON (PRESIDENT): The question at issue is have the appellants, Newspaper Publishing Plc shown a reasonably arguable point of law fit for hearing at the Employment Appeal Tribunal, if not, we must dismiss their appeal; if they have, it will be allowed to proceed.

The appeal which they wish to make is against an unanimous decision of an Industrial Tribunal held at Stratford on 25th and 28th July 1997. Both parties, that is Newspaper Publishing Plc and the National Union of Journalists ["NUJ"], were represented by Counsel. By that decision the Industrial Tribunal concluded that a declaration should be made that the respondents had acted in breach of s.188 of the 1992 Act.

The essence of the complaint which was made by the NUJ was that the Company should have been consulting with them earlier than it did about impending redundancies on the Independent Newspapers.

The facts as found were that by 20th June 1995 it was finally agreed that cost-cutting to the editorial budgets of the two newspapers would be accepted, and that that meant inevitably staff cuts, representing 35 to 50 jobs. The extent of the cuts having been agreed between Mr Hargreaves and Mr Wilson, there followed a series of meetings between them and the managing editor, Mr Colin Hughes, and the editor of The Independent on Sunday, Mr Wilbey, as to how these cuts would be implemented. Mr Colin Hughes was instructed to select those who were to be made redundant and he produced a list of the names of those selected, as a meeting which took place between Mr Hargreaves and Mr Wilbey and the personnel director, Mr Robert Gregory, which took place on 23rd June 1995.

In relation to the NUJ, they represented most of the people who were on the list drawn up by Mr Colin Hughes, but were given no information in relation to the matter until 29th June 1995. On 29th June, in the afternoon, a list of those selected for redundancy was provided to the Union. It was not the same list as had been provided on 23rd June 1995. It had been modified in certain respects as a result of discussions which had taken place without the involvement of the trade union, amongst the various managers on the newspaper.

The Industrial Tribunal, having set out the evidence, reviewed the relevant law and there is no dispute that they have set out the principles correctly. At the time at which this case was considered, it was correct for the Industrial Tribunal to have applied the law which had then been in force, though it is right to say that it has been amended subsequently to more closely accord with a Directive. Therefore, in the law as it was being considered at the time, it was the duty of an employer to consult at the earliest opportunity. The tribunal quite rightly identified the fact that there could be no effective consultation until after the information required to be disclosed under the statute had become available. The information required to be disclosed is set out in s.188(4) and includes the reason for the proposals and the numbers and descriptions of employees who it is proposed to dismiss as redundant.

It was Counsel's submission to the Industrial Tribunal no doubt as it was repeated to us, that because of the peculiar nature of the newspaper industry and the way in which people work on newspapers, the numbers and descriptions of employees who it is proposed to dismiss necessarily involved detailed consideration of the persons who were to be dismissed, because the individual was identified with the job.

The Industrial Tribunal concluded that by 23rd June 1995 the duty to consult had arisen because, they were of the view, that at that date the employers knew the numbers and descriptions of employees who it was proposed to dismiss as redundant, They were of the view that consultation was required with a trade union, at a time when the proposals are still at a formative stage. They therefore rejected the submission which was made to them that the time for consultation arose only as a result of the second list being provided on 29th June 1995.

It is suggested to us in argument by Mr Sendall, who has represented his clients interests in a capable manner, that the tribunal did not appreciate that there were two lists, and therefore, had not directed their minds to the question as to whether the duty to consult had not arisen until 29th June 1995.

We reject that suggestion, not least because there is nothing in the decision itself which suggests that that is so on a fair reading of it. It seems to us clear from looking at paragraph 10 (e) of the tribunal decision, that they had applied their minds to the questions in issue and had concluded that the duty to consult arose as at 23rd June 1995. If Mr Sendall's submission were correct that the duty arose only at 29th June 1995, it seems to us that it would have the consequence of effectively emasculating the purpose for which discussions were required, including consultation about the proposed method of selecting the employees who may be dismissed. Accordingly, it seems to us plain that the statute contemplates that discussions and consultations need to take place at a formative stage of the proposals to dismiss more than 20 people by reason of redundancy, at a time when the union can play an effective role in the consultation process, arguing for numbers and the methods of selection. That role they were deprived of by the employers' decision in this case to effectively finalise in their own minds the people who were to go before entering the consultation process.

The second point that is made, and attractively made, is that although the statute then said "at the earliest opportunity consultation should begin" there has been an amendment for the reason given to delete those words and to substitute words "in good time". It does not seem to us that there is likely to be any significant distinction for present purposes between the two phrases. "In good time" in the context of this case, must have meant within 24 hours, or thereabouts, of 23rd June 1995, just the same as that would have been a sensible period of delay having regard to the words which were in existence at the time namely "at the earliest opportunity.

It seems to us, therefore, that this was a competent decision of an Industrial Tribunal who have correctly analysed the law, looked at the facts with care and formed a judgment as to the time when consultation should have begun.

Accordingly it is a decision with which we do not think we could interfere. We therefore do not believe that Mr Sendall, despite his best endeavours, has raised sufficient arguments to justify this matter proceeding to a full hearing. Accordingly, the appeal will be dismissed.