This case revolved around Art.216 of the Employment Rights (NI) Order (“ERO”) which imposes a duty upon an employer, in some situations, to collectively consult with representatives of all or part of its workforce. 

Pursuant to Art.221 of ERO the administrator of the respondent notified the Department for Employment and Learning of any potential redundancies. Since November 2012, there had been a single, continuous, although evolving, programme of redundancies in respect of the respondent.

The tribunal sequentially dealt with the following issues in the case. It was clear that the claimants all had ‘standing’ under the legislation since, inter alia, the respondent made no attempt at collective consultation. Added to this, the employer failed to consult with any relevant “employee representatives” for the purposes of the legislation. The tribunal also rejected the contention of the respondent that the poor financial position of the company meant it was not ‘reasonably practicable’ for them to comply with the duty to inform and consult. This eliminated any ‘special circumstances’ defence. 

The issue of payment of a ‘protective award’ (pursuant to Art.217) was dealt with by the tribunal and it relied on the case of Haine v Day [2008] IRLR 642 in unequivocally finding that a protective award of 90 days was payable. The tribunal appeared unimpressed by any of the respondent’s contentions regarding mitigating factors, especially considering they were unrepresented at the hearing. 

The issue of whether the claims were time-barred received close scrutiny from the tribunal, with the decision that the claims were not out of time based on the fact that the operation of redundancies was a ‘single redundancies programme’. Therefore, by November 2013, the primary limitation period, in respect of the relevant Art.217 complaint, had not yet expired (because the last redundancy pursuant to the relevant redundancy programme had not yet taken effect).


Practical lessons from this decision:

An important consequence of this case is that as a result of Art.216 of the legislation, employers have responsibilities to not only consult with representatives but to facilitate the election of employee representatives who are elected for the purpose of participating in redundancies collective consultation. The tribunal outlined the comprehensive legal framework which demonstrates the ever-increasing responsibility of consultation for employers. Indeed, the law currently allows for the invocation of the complaints-mechanism at the behest of a union, an employee representative or an individual. Art.217 of the ERO 1996 details this ‘pecking order’ in relation to making of complaints which the tribunal were deferential to in finding against the respondent.