United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D TROTTER (of Counsel) Watson Burton Solicitors 20 Collingwood Street Newcastle Upon Tyne NE99 1YQ


 


MR JUSTICE BELL: The nature of the case, of course, appears from the papers in the file, but this morning Mr Trotter, appearing for the Appellant on this ex-parte preliminary hearing, has stressed that the particular issue which he wishes to argue relates to when the proposal to dismiss as redundant the scaffolders employed by the Appellant actually occurred for the purposes of Section 188 of the Act. Mr Trotter has spelt the matter out in this way.

The Tribunal's first task, he says, was to identify when a proposal was made. The fact of a proposal imposes a series of specific duties. It is not permissible, he argues, for the Industrial Tribunal to widen a proposal into anticipation of a situation arising where a proposal might be made. The earliest that the proposal could have been made in the circumstances of this case was when the main contractor handed his letter to the Appellant employer, the latest was when the Appellant employer sent a letter giving one week's notice to the scaffolders in question.

Mr Trotter contends that the bulk of the Tribunal's reasoning consisted of a series of assertions as to what the Appellant ought to have anticipated after the first tranche of redundancies with the dismissals by reason of redundancy on 31 January 1997.

The Tribunal found that the first tranche of dismissals was forced on the Appellant and it treated the circumstances as not requiring the Appellant to undertake duties under Section 188, but the Tribunal went on to treat the triggering of duties under Section 188, so far as the second and third tranches of dismissals were concerned, as being the alerting of the Appellant to the possibility of changes in the requirements for scaffolders and the alerting of the Appellant to the possibility that a demand could be made to reduce the numbers on site at exceptionally short notice.

Mr Trotter wishes to contend that the Tribunal fell into error in treating that alerting as the trigger from which consultation should commence, rather than the time of a proposal, and that it further erred in that it did so with regard to each tranche. The error, he says, was more pronounced with regard to the third tranche than to the second tranche. Picking the earlier date of being alerted or forewarned, as opposed to the date of actual proposal, he says, clearly affected and must have affected the Tribunal's decision as to whether protective awards should be made and, if so, what their length should be. That point Mr Trotter says is of some importance in the shipbuilding industry, particularly in so far as ships coming in at short notice for work to be done is concerned, with the variable requirements for labour which that brings about.

Mr Trotter has other points, but he thinks that that first and most substantial point will engage approximately 75 per cent of the Appeal Tribunal's time upon the hearing. Having heard what Mr Trotter has said we propose to allow this matter to proceed to a full inter-partes hearing. It should be listed as Category B with a time estimate of up to one day.