The respondent was a waste management company which ceased operations with immediate effect in December 2014. All employees, including the claimant, were informed that they were being dismissed because of the closure of the business. Since at least 20 staff were employed, duties were owed under Article 216 of ERO which imposes a duty upon an employer to collectively consult with representatives of all or part of its workforce. 

Since the company became illiquid at short notice (a matter of days before the dismissals) there were 'special circumstances' which rendered it not reasonably practicable to comply with all the statutory requirements. However, the tribunal examined Paragraph (9) of Article 216 which requires the employer to then take 'all steps' towards compliance with the legislation even if special circumstances apply. No relevant steps were taken and the Company thus breached the requirements of Article 217 and a protective award was made.

Practical lessons

Even if an employer has failed to consult with staff as Article 216 provides, the 'special circumstances' defence can apply. But here the employer took no relevant steps towards compliance. The tribunal suggested what sort of action may have been deemed sufficient by noting that it would have been open to ask its workers to elect one or more representatives in connection with a truncated collective consultation which could have started and concluded on the same day. 

The small size of the workforce would also have made such a consultation easier to manage and what is "reasonably practicable" in the circumstances is undoubtedly fact specific. This case is illustration of the reality that if a company becomes illiquid at short notice, organising a truncated consultation is better than no action at all and will more likely satisfy the tribunal that no breach of Article 127 occurred.