United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR FREER Legal Officer GMB 22-24 Worple Road London SW19 4DD
For the Respondents	No appearance or representation by or on behalf of the Respondents


 


HIS HONOUR JUDGE D PUGSLEY This is an appeal against the decision of the Employment Tribunal at Stratford with the Chairman sitting alone that the Appellant's claim for a protective award be dismissed.

1. The Appellant commenced employment with the Respondents as a cutter in August 1992. On 13th August 1998 or thereabouts, the Respondents wrote to the Appellant notifying him that the company was considering transferring all the product lines currently managed by the Progress Road Factory at Southend, to its factory in Pensnett. The Respondents invited the Appellant to elect a representative for the purpose of consultation.
2. On 20th August the Respondents wrote to the Appellant notifying him of this intention to start discussions with the elected representatives on Tuesday 1st September 1998. On 3rd September there was a meeting between a Mr Franks representing the Respondents and the Progress Road's elected representatives which included the Appellant. On 9th September, Mr Roy Boosey, the GMB Regional Organiser wrote to Mr Franks of the Respondents confirming the employer's representatives request for information. On 15th September there was another meeting between Mr Franks representing the Respondents and the elected representatives of which included the Appellant. On 18th September Mr M Franks wrote to the Appellant informing him that the Progress Road factory will close on 2nd October and to Mr Boosey confirming the same details. The factory did close and the Appellant representative's employment was terminated on 2nd October.
3. The Appellant made a claim under the Employment Tribunal for a protective award under Section 189 of the Trade Union Relations Consolidations Act 1992 due to the failure by the Respondent to fully comply Section 188 of that Act particularly with regard to the provision of information. It is I think pertinent to note that in the body of the IT1 it was said:

"We asked for certain information to see if dismissals could be avoided by alteration to works practises and whether people could be re-located at our other site. The whole exercise was a sham and there were no meaningful discussions. We were all given notice on 18 September 1998 and dismissed on 2 October 1998."

A Protective award was lodged because of the Respondent's failure to consult.

4. The grounds of appeal are:

"the failure of the Respondent to answer a request for information is clearly pleaded in the IT1 and was the essence of the Appellant's case before the Employment Tribunal.

The Employment Tribunal made a finding that certain information had been requested from the employer as part of consultation. The Employment Tribunal erred in law by failing to make a finding and that these requests had not been complied with.

Further or in the alternative, the Tribunal erred in law by failing to assess whether or not proper consultation had been undertaken with the appropriate representative, as required by Section 188 of the Trade Union Labour Relations (Consolidation) Act 1992.

Further or in the alternative, if such consideration had been made by the Employment Tribunal it is erred in law by failing to adequately make out its findings so as to allow the parties to know why they won or lost or whether or any question of law as arisen in the case of Ucatt –v- Brain (1980) IRLR 357. The Appellant is not in a position to know whether or not the Tribunal asked itself if the information provided was sufficient to fulfil the statutory requirement for consultation with a view to seeking agreement. "

The essence of consultation is that parties have sufficient information to make the process meaningful. The fact is that it is very unlikely that a consultation will not alter matters is not in itself a ground for not making a protective award. The Tribunal reviewed the factual background to the issue and then in the paragraph 9 the Tribunal went on to say this:

"I conclude that the Respondents did comply with Section 188 as they gave notice to the employees on 13 August and because it was before the holiday period they were not able to have the actual fires meeting until 3 September and the dismissal took place on 2 October which is over 30 days from the first notification."

And the Tribunal's view was that:-

"The Respondents have complied with the Sections of 188 and therefore there are no grounds of considering the payment of a protective award under Section 189."

5. We have considered the grounds of appeal and we accept that there was information requested but that nothing was said in the decision as to what the results of those enquiries were. It is difficult on the basis of the decision to see whether or not such information was provided which would make the consultation meaningful in any real sense. The legislation is of course to comply with the directive which requires an employer to supply all relevant information to enable worker's representative to make constructive proposals. The provision of relevant information is a factor in the overall assessment as to whether or not consultation has taken place.
6. We have come to the view that the criticisms made in the grounds of appeal are well founded. We do not consider that we should attempt to determine the matter ourselves. In our view this should go back to another Tribunal. We also think that it really ought to go back to a Tribunal consisting not only of a Chairman but of Industrial members. The width and range of work on which Tribunal Chairmen have to adjudicate is enormous. In our collective experience protective awards are rare. Sadly it is the collective experience from all of us that redundancy exercises are very frequent and we think that to have Industrial members who have their own experience of how it works would be invaluable in assessing a case of a protective award.
7. Further we do think that the Secretary of State should be appraised of the position so that if so minded could intervene in the matter. Decisions reached after balanced arguments on both sides are more likely to be sound than the decisions which are based on the argument of only one advocate. We allow this appeal and we direct that it goes back to a differently constituted Tribunal. We direct that the Secretary of State is informed of the rehearing and we earnestly ask that consideration should be given for there to be a Tribunal consisting of three, a Chairman and two members rather than a Chairman sitting alone.