January 29, 2008

Timing of Duty to Consult in a Collective Redundancy Situation

Employers are obliged to consult collectively with employee representatives where they propose to dismiss 20 or more employees by reason of redundancy within a period of 90 days. It is now clear that this obligation applies even at the formative stages of the redundancy process.

In UK Coal Mining Limited v (1) National Union of Mineworkers (Northumberland Area) (2) The British Association of Colliery Management, the EAT held that employers have a duty to consult over the business reasons for making redundancies since this forms part of the obligation on employers to consult with employees on the ways in which redundancies can be avoided.

The case involved a colliery which was closed down for health and safety reasons following a flooding of the premises. It was subsequently discovered that this was not the reason for the closure of the colliery and that the actual reason for closure was economic. As the incorrect reason was given, the employer was taken not to have complied with its obligation to provide written notification of the reasons for the proposed redundancies to the employee representatives. This meant that the employer had not complied with its obligation to consult under collective redundancy legislation.

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