The Claimants worked for the Respondent charity. In June 2015 the Respondent got into financial difficulty and applied for a £3m Government grant on the basis that a private donor would match the government’s award. Plans were put in place to consult on the redundancies of 100 staff. However, funding was withdrawn after bad publicity relating to a police investigation into child safeguarding issues. All staff were eventually made redundant.

The Claimants were each granted 90 days’ protective award by the ET. It held that a consultation should have started as soon as the grant was applied for and redundancies planned. The EAT agreed with the ET that the Respondent should have consulted in June 2015 as it was facing worsening financial conditions regardless of the government grant. The failure to obtain the grant and the private donation 3 months later did not constitute a ‘special circumstance’ which may act as a valid defence under the GB legislation (S.188 Trade Union and Labour Relations (Consolidation) Act 1992).

Practical Lessons

This case demonstrates that employers should consider commencing a consultation as to redundancies even when plans are provisional. The duty to start collective consultation here was triggered in this case irrespective of the fact that the exact jobs at risk were not identified.

Further, in this jurisdiction a similar defence applies under Article 216(9) of the Employment Rights (NI) Order 1996 that enables employers to argue that ‘special circumstances’ made it not reasonably practicable to comply with their statutory duties to consult on potential collective redundancies. The EAT found that the negative publicity arising from the safeguarding scandal could have been a special circumstance. However, the respondent could not rely on those events to retrospectively justify a failure to start the consultation promptly. In short: it is better to consult too early than it is to consult too late.
http://www.bailii.org/uk/cases/UKEAT/2018/0057_17_2102.html