Mrs J Green and Others v Co-Operative Group Ltd: 4107790/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4107790/2024
Between
Mrs J Green & othersClaimantCo-Operative Group LimitedRespondent
Before
Employment Judge SmithMr E McFarlane (Solicitor) for respondentDate 19 March 2026
JUDGMENT
The Claimants’ claims for protective awards under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 are dismissed as the Claimants have no standing to bring such claims.
REASONS
[1]By way of a multiple claim form presented to the Tribunal on 24 December 2024 the Claimants brought claims of unfair dismissal and for protective awards under s.189 Trade Union and Labour Relations (Consolidation) Act 1992, based upon what they contend was a failure on the Respondent’s part to comply with its collective consultation obligations imposed by ss.188 and 188A of the same Act.[2]There are 110 Claimants in the multiple, of which five have been identified as lead Claimants in the proceedings. Amongst those five is Mrs Green, who (by apparent consensus on the Claimants’ side) spoke on their behalf at this preliminary hearing. To her credit, Mrs Green has led the litigation on behalf of the Claimant group from the inception of proceedings and throughout.[3]This preliminary hearing had been listed by Employment Judge Sutherland on 28 April 2025. It did not concern the Claimants’ unfair dismissal claims, which are yet to be determined and remain to be case managed. It was listed to consider a single issue, namely: Whether the Claimants were of a description in respect of which an independent trade union was recognised by the Respondent at the time of the proposal to dismiss as redundant (s.188(1B)(a)) such that the complaint must be brought by the trade union (s.189(1)(c)).[4]I was presented with a productions file amounting to 702 pages. During the course of the hearing both sides drew my attention to some of the productions, but the great majority were not referred to at all. From the Claimants’ side I heard oral evidence from Mrs Green only. From the Respondent’s side I heard evidence from Mr Andrew Shepherd, Employee Relations Manager. Findings in Fact[5]In making the following findings I have restricted myself to making only such findings it has been necessary to make in order to determine the bargaining unit preliminary issue. I appreciate that there may – potentially – be another preliminary issue which may require further findings in its determination, and of course the wider claims remain to be determined. All of the findings I have made are based on the evidence I was presented with, applying the appropriate standard of proof: the balance of probabilities.[6]The Claimants were employed by the Respondent as Member Pioneers (“MPs”) or Member Pioneer Co-ordinators (“MPCs). None of them were members of the USDAW trade union at any material time.[7]There is no dispute between the parties that USDAW is an independent trade union.[8]The Respondent has a long-standing relationship with USDAW. Mr Shepherd had a particularly good vantage point upon which to comment upon the nature and development of that relationship because it forms an integral part of his role as Employee Relations Manager, and whilst the Respondent has relationships with other trade unions, managing the relationship with USDAW forms the main part of his role.[9]Around 30,000 employees of the Respondent are members of USDAW. The relationship between the Respondent and USDAW has, over the years, resulted in several collective agreements being reached between them, covering various segments of the Respondent’s workforce.[10]One of the lead Claimants – Ms Barbara Holligan – was issued with a statement of employment particulars on 9 May 2019. That statement included the relevant stipulation that, “There are no unions currently recognised for representation and procedural purposes for your class and location of employment. Currently there are no collective agreements covering your employment.” It also stated that “The Co-op reserves the right to make reasonable changes to your terms and conditions of employment. If the Co-op needs to make significant changes, appropriate consultation will take place.”[11]In 2022 discussions were being had between the Respondent and USDAW about its MP and MPC employees. Mr Shepherd became involved in those discussions part of the way through that year when he took over the mantle from a colleague.[12]The nature of those discussions concerned recognition by the Respondent of USDAW as the representative of the MP and MPC class of employees, for collective bargaining purposes. Recognition, as a matter of principle, was uncontroversial within those talks and, as Mr Shepherd described, was “a given”. The substance of the ongoing discussions between the Respondent instead focused on which of its collective agreements the MP and MPC cohort would be placed on. The Respondent did not favour creating a bespoke collective agreement for the MP/MPC class because the perception was at the time that it had too many different collective agreements in force at that time and there was a desire to streamline matters.[13]Instead, the talks distilled the possibilities down to two: that the MP/MPC class should be added to the Retail Staff collective agreement, or that they should be added to the Support Agreement (formally described as the “Co-op Support Agreement”), applicable to other classes of employee which would be described as support staff. USDAW’s position was that they wanted the MPs and MPCs to be included within the Support Agreement because it included certain preferential terms.[14]Ultimately it was agreed between the Respondent and USDAW that the MPs and MPCs would be placed on the Support Agreement. Mr Shepherd told me, and I accepted, that this was because the terms of that Agreement were more beneficial to employees than the Retail agreement. The Agreement was reduced to writing in an updated version of the Support Agreement itself on 1 April 2023. It was signed by Mr Shepherd on behalf of the Respondent and by a representative of USDAW on 14 April 2023.[15]Of relevance are the following passages within the 1 April 2023 Support Agreement: The review date for this agreement will be 1 April and pay negotiations for the colleagues covered by this agreement will be held annually. a) Scope This agreement covers all colleagues in Work Levels 5 and 6 in the current Co-op Work Level Structure, except for: [roles not relevant]. This agreement also covers Member Pioneer Co-ordinators and Member Pioneers – see Appendix 4 for specific details of Member Pioneers. The Co-op recognises USDAW as the sole representative and negotiating body for colleagues covered by this agreement pursuant to a separate recognition agreement. ... USDAW and Co-op agree that this agreement is not legally binding between the parties. USDAW is entering into this agreement on behalf of its members and the provisions of paragraphs 2, 3, 4, 5 and 6 shall be incorporated into individual contracts of employment for all colleagues covered by this agreement.[16]Paragraphs 2 to 6 of the Agreement cover hours of work, overtime, holidays, sick pay and the termination of employment. Appendix 4 – which specifically refers to the MPs and MPCs – covers matters relating to pay, working hours, working days, overtime, sick pay, bonus and notice.[17]The previous iteration of the Support Agreement was dated 1 April 2020. It was signed on 22 December 2020 by Mr Shepherd on behalf of the Respondent and John Gorle on behalf of USDAW. The corresponding section of that document was materially identical save that it made no reference to MPs and MPCs, and there was no Appendix 4.[18]The “separate recognition agreement” referred to under the sub-heading “Scope” (above) was not produced by the Respondent. However, in evidence Mr Shepherd was asked by Mrs Green whether he had seen a copy of it; he confirmed that he had. Mr Shepherd stated that the document exists and that USDAW also have a copy. Upon further questioning by Mrs Green, Mr Shepherd confirmed that the separate recognition agreement is an overarching agreement that covers all of the Respondent’s collective agreements with USDAW. On the subject of the recognition agreement’s existence and its substantive contents, Mr Shepherd’s evidence was not challenged. I therefore accepted it.[19]Based on this evidence, my findings are that there is a separate recognition agreement between the Respondent and USDAW, and that under the auspices of that recognition agreement USDAW is recognised as having bargaining rights vis-a-vis the Respondent, on behalf of large segments of its workforce. Whilst I have not seen any of the other collective agreements Mr Shepherd referred to, it was plain from the 2020 and 2023 iterations of the Support Agreement that those bargaining rights as USDAW are recognised as having extend to bargaining about matters including pay, overtime, hours of work, holidays and – importantly in this case – the termination of employment. The 2023 Support Agreement made reference specifically to MPs and MPCs as a class of employee in respect of which USDAW was recognised by the Respondent as having those kinds of bargaining rights.[20]At some point in February or March 2024 the Respondent decided that it wished to embark upon a restructure exercise which would affect the continued employment of the MPs and MPCs. There was no documentary evidence presented to me about precisely when such a decision was made (or by whom) and Mr Shepherd could not be more precise than to say that this occurred some “two to three months” before a first collective consultation meeting took place with USDAW (on 17 May 2024). Whilst an unsatisfactory situation evidentially, Mr Shepherd was nevertheless able to identify this time by reference to that meeting and to the fact that that was when he was called in to advise the business about the proposed restructure from an employee relations perspective. I accepted this evidence.[21]In cross-examination Mrs Green took Mr Shepherd to a grievance outcome letter in which it was stated that “the process” (or consultation) started in June 2023, and put to him that such decisions had in fact been taken significantly earlier. Mr Shepherd suspected that the reference to 2023 must have been a typographical error and that it should have been to 2024. I did not accept Mrs Green’s point and preferred the evidence of Mr Shepherd in this regard. He explained that it would have been illogical for the Respondent to place the MPs and MPCs on improved redundancy terms (which their inclusion within Support Agreement had the consequence of doing) only to then, within a matter of a few weeks, place the MPs and MPCs at risk of redundancy. That would have had the result of imposing a significant additional cost onto the Respondent and would, in effect, have amounted to something of a financial own-goal.[22]Mr Shepherd’s involvement from February/March 2024 onwards, and the nature of his involvement (as an advisor to the business on employee relations matters), indicated to me that it was only at some point in February or March 2024 that the Respondent had made a strategic decision regarding the restructure that meant that it needed to plan for redundancies, specifically with regard to the MPs and MPCs. Accordingly, that is my finding. The law When the employer “is proposing to dismiss as redundant”
The law
[23]As the wording adopted by Employment Judge Sutherland denotes, the determination I am required to make should firstly focus on a particular point in time. That time is when “the Respondent proposed to dismiss as redundant”, the language of which derives from s.188(1) of the 1992 Act, which states that: (1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.[24]What is meant by “proposing to dismiss” has been the subject of some judicial controversy over many years, but such controversy as there may have been has now largely been removed by the decision of the Court of Justice of the European Union (CJEU) in Atavan Erityisdojen AEK v Fuijitsu Siemens Computers [2009] IRLR 944. As a decision of the CJEU made prior to the United Kingdom’s departure from the European Union, Atavan remains applicable as a part of the UK’s domestic law.[25]At paragraphs 46 and 48 of its decision in Atavan the CJEU drew the important distinction between situations in which “decisions likely to lead to collective redundancies [are] merely contemplated...” and those where an employer has made a “strategic or commercial decision compelling him to contemplate or plan for redundancies...”. In the former situation the duty to consult the appropriate representatives of the affected employees (the s.188(1) duty) is not triggered, but in the latter, it is.[26]In the words of Elias P in UK Coal Mining Ltd v National Union of Mineworkers [2008] IRLR 4 (EAT) at [86], there must be a “fixed, clear albeit provisional intention” to make collective redundancies, but it does not need to have be so advance so the point is reached whereby, for example, a list of names of the at-risk employees has been drawn up (Keeping Kids Company (in compulsory liquidation) v Smith [2018] IRLR 484, EAT).[27]Of course, the “proposal” point is but one component of the overall question as to whether the s.188(1) duty is in fact triggered. It is, however, the only part of it which I am required to decide at this preliminary hearing. “Appropriate representatives of any of the employees who may be affected” etc.[28]Section 188(1B) of the 1992 Act defines what is meant by the appropriate representatives of the affected employees. It states that: (1B) For the purposes of this section the appropriate representatives of any affected employees are:(a) if the employees are of a description in respect of which an independent trade union is recognised by the employer, representatives of the trade union, or(b) in any other case, whichever of the following employee representatives the employer chooses: (i) employee representatives appointed or elected by the affected employees otherwise than for the purposes of this section, who (having regard to the purposes for and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf; (ii) employee representatives elected by the affected employees, for the purposes of this section, in an election satisfying the requirements of section 188A(1).[29]In this preliminary hearing a heavy focus has been on s.188(1B)(a): whether the Claimants were employees of a description in respect of which an independent trade union recognised by the employer.[30]There are two main features that must exist in order for trade union representatives to come within the ambit of s.188(1B)(a): 30.1. Firstly, their trade union must be “independent” in the sense that it is not controlled or dominated by the employer, nor vulnerable to the employer’s undue influence (s.5 of the 1992 Act). 30.2. Secondly, the trade union must be “recognised” for the purposes of collective bargaining (s.178(3)). In practice, a threshold is imposed. It means that the trade union must have some right to negotiate (rather than something less) and in terms of bargaining rights, it must be recognised by the employer as having bargaining rights for the relevant class, category or description of employee (s.188(1B)(1a)). Within s.178(2) there is a list of matters in respect which negotiations related to or connected with are deemed to amount to “collective bargaining” in this context, amongst which is s.178(2)(b) (“the termination... of employment”).[31]Where an independent trade union is so recognised, its recognition extends to the whole of the relevant class of employees irrespective of the fact that not all employees within that class may be members of that trade union.[32]Recognition can be achieved in a number of ways but in determining this preliminary issue I am concerned only with the method of “true” voluntary recognition. Voluntary recognition may itself be achieved in a number of ways, which could include an inference being drawn from a course of dealing (National Union of Tailors and Garment Workers v Charles Ingram & Co Ltd [1977] IRLR 147 (EAT), an informal agreement, or a formal agreement. The question of whether a trade union is or is not recognised is a mixed question of fact and law (National Union of Gold, Silver and Allied Trades v Albury Bros Ltd [1977] IRLR 173 (EAT). “Bargaining Unit”[33]Whilst Employment Judge Sutherland described the preliminary issue referred to at paragraph 3 (above) as the “bargaining unit preliminary issue” as (I am sure) a convenient shorthand for what is a lengthy question, the wording of the preliminary issue itself does not feature the words “bargaining unit”, nor does the question itself require me to decide whether there was (or was not) such a unit and what its boundaries were. Section 188 does not use that language or incorporate the concept either. However, given that this label has been used in the proceedings – and some evidence was given on that issue – it may be helpful in understanding my later conclusions if I explain a little about the concept of a “bargaining unit”.[34]A “bargaining unit” is a concept encountered in the context of statutory recognition, i.e. as part of the statutory route a trade union may use in order to obtain a declaration from the Central Arbitration Committee (CAC) requiring the employer to recognise it, under part I of schedule 1A to the 1992 Act.[35]That said, the concept also features in what schedule 1A describes as the “voluntary recognition” route under part II. There (in paragraph 53(2)) it is stated that “references to the bargaining unit are to the group of workers (or the groups taken together) to which the agreement for recognition relates.” However, whilst part II is headed “voluntary recognition”, the process laid out in that part does not govern what are “true” voluntary recognition agreements reached between an employer and a trade union, independently of the statutory schemes. The part II provisions apply in circumstances where the trade union has commenced the formal part I process but abandons it early because the employer has agreed to voluntarily recognition. It is therefore something of a hybrid, semi-statutory route to recognition and one that is very rarely used. Who may claim[36]If a Tribunal decides that an independent trade union or employee representatives were the appropriate employee representative for s.188(1B) purposes, an individual cannot pursue a claim for a protective award under s.189, even if the trade union or employee representatives decline to do so (Mercy v Northgate HR Limited [2008] IRLR 222 (England and Wales Court of Appeal) and Transport and General Workers Union v Brauer Coley Ltd [2007] ICR 226 (EAT)).
Conclusions
[37]Applying the law to my findings in fact, I have reached the following conclusions. I have borne in mind the parties’ respective submissions but it is not necessary for me to repeat those here.[38]Turning first to the question of timing, I have borne in mind in particular the decisions in Atavan and UK Coal Mining. My findings at paragraphs 20 to 22 are determinative of this issue. It was only in February/March 2024 that the Respondent “proposed” (in the s.188(1) sense) to dismiss as redundant the MPs and MPCs.[39]It further follows, from my findings that as at February 2024 the Respondent did recognise an independent trade union for the purposes of collective bargaining. That independent trade union was USDAW (paragraphs 7, 18 and 19) and that there was, through the recognition agreement and the 1 April 2023 iteration of the Support Agreement, a recognition by the Respondent that USDAW had the right to negotiate/collectively bargain in respect of certain matters, including pay, working hours, working days, overtime, sick pay, bonus and notice, which connotes the termination of employment (paragraphs 14 to 16 and 18 to 19). It was abundantly clear to me that the kinds of matters contemplated by s.178(2) were indeed features of this recognition.[40]Finally, as to whether the Claimants were of a description in respect of which an independent trade union is recognised by the employer (the s.188(1B)(a) point), my conclusion is that all MPs and MPCs were of such a description. They were expressly described, in unambiguous terms, by their job titles in the body text of the Support Agreement of 1 April 2023 and (paragraph 15) and had an appendix to that agreement (Appendix 4) expressly devoted to them (paragraph 16). At the time of the “proposal” in February/March 2024, the Support Agreement of 1 April 2023 remained in force. Any Claimant in these proceedings who was employed as an MP or MPC was therefore part of this description.[41]It follows that any duty the Respondent may have had to collectively consult under s.188 in respect of MPs and MPCs was a duty to consult with USDAW only, as the independent Trade Union recognised by the employer for collective bargaining purposes in respect of the relevant description of employee, by virtue of s.188(1B)(a).[42]For completeness I add two further observations. The first concerns the contractual position that was apparent from Mrs Holligan’s 2019 statement of employment particulars (paragraph 10). In my judgment it was immaterial whether Mrs Holligan’s contract – or any other Claimant’s contract – mentioned the recognition (or lack of recognition) of any Trade Union, or indeed the applicability (or nonapplicability) of any collective agreements to the MPs or MPCs at a time prior to 1 April 2023. The statutory gateways towards obtaining protective awards under s.189 are in no way dependent upon individual employees giving their assent to the employer and/or an independent Trade Union entering into recognition agreements or collective agreements between themselves. The statutory scheme would be rendered unworkable if such individual consent was required, particularly in the case of employers with a large workforce and in circumstances where a large contingent of employees within that workforce were not members of the Trade Union (cf. Mercy and Brauer Coley).[43]The other observation concerns the “bargaining unit” issue. A significant part of the evidence at the preliminary hearing concerned this issue, but in my judgment the point was not of particular assistance to me in reaching my decision. This was for two reasons. The first was that, upon my explanation to her of what is meant by a “bargaining unit”, Mrs Green inevitably had to accept that the “bargaining unit” in this case constituted the MPs and MPCs. It could never have been, as previously intimated by the Claimants’ side, those doing the bargaining on behalf of the unit (i.e. USDAW). The second reason was that the concept of a “bargaining unit” itself is peculiar to the statutory recognition and statutory voluntary recognition schemes (under parts I and II to schedule A1) and not to those situations where recognition truly is voluntary as between the employer and the Trade Union, as was the case here.[44]Therefore, for the reasons expressed above, in my judgment the Claimants are unable to pursue claims for a protective award as they have no standing to do so under s.189 of the 1992 Act. Their claims for protective awards must therefore fall to be dismissed. 25 November 2025[1]On 8 December 2025 Mrs Green, on behalf of all the Claimants, made a reconsideration application in respect of my preliminary hearing judgment on the issue of whether the Claimants had standing to bring claims for protective awards under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992. For the reasons set out in that reserved judgment, I decided that the Claimants lacked standing and therefore I dismissed those claims. Mrs Green contends that I was wrong to do so.[2]I did not dismiss the application under rule 70(2) of the Employment Tribunal Procedure Rules 2024 when I first read it. Although my initial, provisional view was that the application disclosed nothing with any reasonable prospect of varying or revoking the decision, I noted that the Claimants were seeking to run a “new evidence” argument. For this reason, the application proceeded to a hearing where it could be fully argued.[3]I was presented with a file of documents amounting to some 194 pages, and with a further file collated by the Claimants, amounting to 21 pages. Mrs Green made oral representations in support of the Claimants’ application and Ms English replied on behalf of the Respondent.[4]Having heard the arguments made by both sides my conclusions in relation to the Claimants’ application are as follows. Ground 1(a) - Procedural unfairness: identity of the Respondent’s witness[5]It is regrettable that the Respondent did not tell the Claimants precisely who would be called to give evidence by it until an hour or so before the preliminary hearing, but in my judgment this provides no basis for reconsideration of the judgment itself.[6]The prospect of the Respondent calling witnesses was mentioned at the preliminary hearing before Employment Judge Sutherland on 28 April 2025, and the parties were encouraged to work together and use reasonable endeavours to prepare a witness timetable a week before the preliminary hearing before me. There was no explicit order that the Respondent inform the Claimants of the identity of any witnesses they intended to call, but the Claimants ought to have appreciated from what was discussed and ordered on that occasion that it was, frankly, inevitable that the Respondent would be calling a witness to deal with such complex issues at the preliminary hearing that went on to be listed before me. The issues to be determined at the October preliminary hearing were also carefully set out by Employment Judge Sutherland, and the Claimants ought to have prepared to ask questions and to put their case in relation to those issues even if they did not know the precise identity of the witness for the Respondent.[7]In her letter of application Mrs Green states that the Claimants “believed that no witnesses were being called, and so did not prepare to question or crossexamine a witness”. The letter goes on to say that “the late witness notice meant that the Claimants had no realistic opportunity to prepare crossexamination or obtain legal advice”.[8]Dealing first with the point regarding the ability to obtain legal advice, in my judgment it is a misconceived argument. Given the complexity of the issues this case presented under the 1992 Act, the Claimants may have benefited from obtaining legal advice well in advance of the preliminary hearing before me. Indeed, such complexities ought to have been apparent to them from the time of the Respondent’s response (filed on 3 February 2025) but, if they were not, then they certainly should have become apparent from the time of the case management preliminary hearing before Employment Judge Sutherland, on 28 April 2025.[9]That preliminary hearing took place some six months prior to the one that came before me, and it was always open to the Claimants to obtain legal advice at any point within that period. Furthermore, even if the Claimants had received the Respondent’s documents late (which they did: see below) a competent lawyer would nevertheless have been able to go through those documents and prepare a cross-examination of a Respondent witness in the time that was available.[10]As to the point regarding a failure on the Claimants’ part to prepare (or a lack of opportunity to do so), in my judgment this contention is wholly unsustainable given what actually happened at the preliminary hearing. Mrs Green – to her credit – demonstrated a high degree of preparedness at the preliminary hearing itself; indeed, Mrs Green navigated a productions file running into several hundreds of pages with fluid ability, and she competently cross-examined the Respondent’s witness for around an hour on matters that were relevant to the issues I had to decide. That cross-examination took into account documents the Claimants had provided but also those latterly provided by the Respondent. If Mrs Green was indeed unprepared (as asserted), that was not apparent to me; I was given very much the opposite impression.[11]Another of the Claimants – Mrs Holligan – also came prepared to ask relevant questions of Mr Shepherd and she was naturally permitted to do so.[12]In any event, these contended-for grounds of unfairness were not raised on the day of the preliminary hearing itself, nor did the Claimants make an application for an adjournment on this basis that they had only very recently been told it was Mr Shepherd who would be called.[13]On this part of the first ground, the Claimants’ application for reconsideration is refused. Ground 1(b) - Procedural unfairness: documents[14]A second point of alleged procedural unfairness relied upon by the Claimants concerns the provision of documents. Their overarching contention, from the letter of application, is that because the Respondent only provided its documents a week before the hearing, the Claimants had “inadequate time to analyse the Respondent’s evidence properly”.[15]Employment Judge Sutherland’s case management order of 28 April 2025 compelled the exchange of documents upon which the parties intended to rely by no later than four weeks before the preliminary hearing. It is correct to observe that the Respondent only provided its documents on 8 October 2025, just over a week before the preliminary hearing, and was therefore in breach of that order.[16]However, at the preliminary hearing itself the Claimants did not say that they had had inadequate time to analyse the Respondent’s documents, and they did not apply for an adjournment on this basis either. Mrs Green conceded that she probably ought to have done if she felt she had had inadequate time to analyse those documents. However, as I have previously observed, Mrs Green appeared to me to have an excellent grasp of the documents, including those relied upon by the Respondent. Excluding the procedural documents it had provided (which the Claimants would already have had), the evidential documents provided by the Respondent only amounted to some 125 pages of the 702-page file. In my judgment, the Claimants did have adequate time to read and consider those documents and from Mrs Green’s crossexamination of Mr Shepherd it was clear to me that she had in fact done so.[17]In my judgment, this second part of the first ground also provides no basis for reconsideration and in respect of it the application is refused. Ground 2 – “Errors and inaccuracies in the judgment”[18]This ground consists of five alleged errors or inaccuracies it is said I made which, in the Claimants’ contention, “go beyond disagreement with evaluative findings and justify reconsideration in the interests of justice”.[19]The first alleged error or inaccuracy concerns paragraph 6 of my judgment, where I found as a fact that none of the Claimants were members of the independent Trade Union USDAW at the material time.[20]This finding was based upon what I understood was an uncontentious position between the parties. It derived from what the Claimants had said in their paper apart, namely their positive assertions that “since we’re not members of the union and don’t have any rights against the union we can therefore hold the Co-op to account over this” (my emphasis). Consistent with that being the Claimants’ position as pled, the paper apart later asserts that, “The Co-op should have elected representatives for the non-union members as there were a great number of non-union members (approximately 92%). We had no voice in collective consultation, were not given access to USDAW to participate in this and were not encouraged to elect a colleague representative.”[21]It now appears that the position put forward to the Tribunal in this formal legal document was inaccurate, as the Claimants now contend that in fact some of them were members of USDAW.[22]I raised with Mrs Green the possibility of varying paragraph 6 to replace the word “None” (in the final sentence) with the phrase “Only a minority”, recognising that I have a discretion in the matter and that such a change appeared innocuous. However, upon reflection, whilst I recognise there to have been a factual inaccuracy in paragraph 6 my discretion upon reconsideration is not without boundaries (Ministry of Justice v Burton [2016] ICR 1128, England and Wales Court of Appeal) and the discretionary power to reconsider should be exercised cautiously (Flint v Southern Electricity Board [1975] ICR 395, EAT). I have to determine where the interests of justice lie (Phipps v Priory Education Services Ltd [2023] IRLR 851, Court of Appeal), as the plain wording of rule 68(1) makes clear.[23]Having considered this point in light of the authorities, and having heard from both sides, I have determined that varying the judgment in the manner I originally posited would not be in the interests of justice, upon reconsideration. The factual finding about the unionisation of the Claimant group was of no consequence to the outcome of the judgment in relation to the Claimants’ (lack of) standing to bring claims for protective awards, and the Tribunal was led into making such a finding by an inaccurate factual position put forward by the Claimants themselves, in their pleaded case. The Respondent and the general public are entitled to expect finality and there is a strong public interest in the finality of litigation.[24]Considering all of these factors in the round, in my judgment the interests of justice lie in refusing the application insofar as it is based upon this first contended-for error/inaccuracy.[25]The second alleged error/inaccuracy concerns my observation, at paragraph 18, that “On the subject of the recognition agreement’s existence and its substantive contents, Mr Shepherd’s evidence was not challenged”. Mrs Green contends that I was wrong to make this observation because she did argue, in submissions, that a recognition agreement did not in fact exist.[26]Whilst the overriding objective (rule 3) does place certain responsibilities onto the Tribunal in terms of how it deals fairly and justly with party litigants and facilitates their participation within the litigation process, those obligations are also not without boundaries. The Tribunal process itself is adversarial and it is for the parties to put their case to the witnesses; the Employment Judge may not enter the arena and put a case for either party.[27]In submissions at the reconsideration hearing Mrs Green accepted that she did not, in cross-examination at the October preliminary hearing, put to Mr Shepherd that the recognition agreement he stated existed did not in fact exist. It was that lack of challenge that I was referring in paragraph 18 of my judgment.[28]If the Claimants believed that no recognition agreement existed it was incumbent upon them to put that proposition to Mr Shepherd in crossexamination and challenge his evidence when he asserted that it did. In my judgment, the Claimants had a fair opportunity to put this proposition to Mr Shepherd at the October preliminary hearing but failed to do so. Furthermore, had any Claimant other than Mrs Green wished to ask this very question of Mr Shepherd I would have permitted it, just as I permitted Mrs Holligan to ask questions in addition to her.[29]In relation to this second contended-for error/inaccuracy, the true position is that there was no error or inaccuracy at all. As was conceded, the Claimants did not challenge the existence of the recognition agreement when Mr Shepherd stated in evidence that it did exist. It follows that this contention provides no basis for reconsideration and the application, on this point, is refused.[30]The third alleged error/inaccuracy concerned my acceptance of Mr Shepherd’s evidence (and thus my finding in fact) that the reference to “June 2023” in a grievance outcome letter was a typographical error and that the reference should have been to June 2024.[31]Mrs Green expanded upon this point in her submissions at the reconsideration hearing. She stated that I had not properly understood a document called “Project Cooper” and a timeline which, in her view, showed that the reference to June 2023 was not an error. However, at the October preliminary hearing Mr Shepherd introduced that particular document into the evidence when he was questioned by the Respondent’s representative about it, and Mrs Green did in fact challenge him on it during her cross-examination. In fact, it was in response to one of her points that Mr Shepherd stated that the reference to “June 2023” was a typographical error; if the Claimants wished to challenge that assertion I would certainly have allowed them to do so. They did not. It was not, however, my place to step in and challenge it myself.[32]Whilst the Claimants may well fundamentally disagree with my conclusion that the reference to “June 2023” was indeed a typographical error, I heard evidence from Mr Shepherd about it, the Claimants had the opportunity to challenge that evidence, and they did take him back to the particular document in question. In my judgment, absent a challenge to the assertion that the reference was erroneous I was entitled to prefer Mr Shepherd’s evidence about that matter and in paragraph 21 fully explained my reasons for making the finding I did.[33]This cannot properly be said to be an error or inaccuracy other than in the sense that it is a finding the Claimants disagree with. It provides no basis for reconsideration and the application based on this point is refused.[34]The fourth alleged error/inaccuracy concerns paragraph 43, in which I explained why the use of the term “bargaining unit” was not on point with the issues I did have to decide at the October preliminary hearing.[35]Paragraph 43 was included largely to explain why this was the case. I felt it was necessary to provide such an explanation because of the complexity of the issues that did have to be determined, the fact the Claimants were party litigants, and because the preliminary hearing had been set up by Employment Judge Sutherland using the term “the bargaining unit preliminary issue” to describe what I had to decide (see her note of 28 April 2025, paragraph 17(b)).[36]In their application the Claimants say that I erroneously or inaccurately recorded their position as being that “those doing the bargaining on behalf of the unit (i.e. USDAW)” were the bargaining unit. They say that this had never been their position.[37]I regret that it is the Claimants who are in error on this point. During her evidence-in-chief I asked Mrs Green to comment on this issue and explain the Claimants’ case. Her evidence was that “There can’t be a bargaining unit where there are no recognised unions,” and, “If there was no recognition agreement it would follow that there can’t be a bargaining unit”. This evidence, to me, appeared to mistakenly equate the concept of a bargaining unit with those doing the bargaining, not with those on behalf of whom the bargaining was being done. It was that apparent misunderstanding I was keen to resolve in paragraph 43.[38]In any event, in her submissions on reconsideration Mrs Green agreed that this reference to the Claimants’ ostensible position at paragraph 43 was a “red herring”. Even if paragraph 43 had indeed incorrectly stated their position, it would have had no impact on my conclusions. Those conclusions were reached for the reasons I explained at paragraphs 37 to 41 and 44, based on the factual findings I made in paragraphs 5 to 22.[39]This fourth point provides no basis for reconsideration and the application based on this point is refused.[40]The last of these can be dealt with swiftly. I accept that there was a typographical error in the judgment header in respect of the date of the preliminary hearing. Whilst the preliminary hearing took place on 16 October 2025, the header incorrectly records it as 13 October 2025. As I explained to Mrs Green at the reconsideration hearing, this kind of typographical error is best dealt with through the issuance of a Certificate of Correction under the slip rule in rule 67, and that I what I have separately done. Ground 3 – New Evidence[41]In relation to this third ground, the Claimants’ letter of application for reconsideration was diffuse. It was not clear to me precisely which documents were being referred to within that section of the letter were said to amount to new evidence, nor was it clear whether any of them actually amounted to new evidence. In this situation it was not possible for me to decide whether the subsequently discovered existence of any such document might have an impact on my judgment at the October hearing. Mrs Green was therefore permitted to fully argue the point and she did so by reference to the additional 21-page file submitted by her on behalf of the Claimants.[42]The position regarding new evidence is a matter of procedural law, and although it is a case which emerged from within English civil procedure rather than Scots Law the principles set out in Ladd v Marshall [1954] 3 All ER 745 (Court of Appeal) are consistent with the approach to be taken to this question in Scotland (Dundee City Council v Malcolm UKEATS/0019/15, 9 February 2016, unreported). What the Tribunal must typically ask itself in the case of new evidence is(1) whether the evidence could not have been obtained with reasonable diligence for use at the original hearing;(2) whether it is relevant and would probably have had an important influence on the hearing; and(3) whether it is apparently credible.[43]Whilst there may be cases in which it is in the interests of justice to admit new evidence even if not all of the limbs of Ladd are strictly met (Outasight VB Ltd v Brown UKEAT/0253/14, 21 November 2014, unreported), the rules do not permit the introduction of new evidence without regard to those principles. The cardinal principle of whether it is in the interests of justice to reconsider a judgment is one which applies north and south of the border because rule 68 applies across Great Britain, and the Ladd principles therefore exist under its aegis (see Wileman v Minilec Engineering Ltd [1988] IRLR 144, EAT).[44]Within their 21-page file the Claimants put forward six documents which they contended amounted to new evidence which justified reconsideration. However, early in her submissions Mrs Green referred to the “Project Cooper” document and the timeline set out within it. That document could not be said to be new evidence as it was available to the Tribunal at the October preliminary hearing. As I have already mentioned, it was introduced in evidence in that preliminary hearing and witnesses were questioned about it. In my judgment, this was not new evidence at all, and I had no hesitation in rejecting the Claimants’ submission that I should treat it as such. It provided no basis for reconsideration whatsoever.[45]I shall now deal with the six documents put forward by the Claimants in their file. The first is a three-page document titled “The Co-operative Group Annual Report 2022”. It appears to be the introductory letter from a much longer document, namely the Respondent’s Annual Report and Accounts for that year. There can be no doubt that this an apparently credible document but (on Mrs Green’s concession) it is a document that was publicly available, and it dated from some years before the October 2025 preliminary hearing. It did not appear to be relevant to the issue of whether the Claimants had standing to bring claims for protective awards in the Employment Tribunal, and in any event, given its publicly-available status it could have been obtained for use at the October 2025 preliminary hearing had the Claimants exercised reasonable diligence. The Ladd test is not satisfied and there is not, in my judgment, any other reason which would make it in the interests of justice to reconsider my judgment.[46]The second and third documents are LinkedIn chats between Mrs Green and two other people: the first is John Gorle, a sometime official within USDAW. The chain is short (the entire chain runs from 12 to 15 February 2026) and involves Mrs Green requesting to speak to Mr Gorle about matters relating to this case; Mr Gorle declines the request. Whilst this document is also apparently credible it seemed to me, of itself, to be wholly irrelevant to the issues I had had to decide on 16 October 2025. Furthermore, there appeared to me to be no reason why Mr Gorle could not have been approached by Mrs Green (exercising reasonable diligence) prior to that preliminary hearing and Mr Gorle’s polite reply not documented sooner.[47]The third document sets out a LinkedIn chat between Mrs Green and a Rebecca Birkbeck, apparently a former employee of the Respondent. A request is made of Ms Birkbeck for her contact details, to which Ms Birkbeck politely declines. Further questions are asked of Ms Birkbeck, to which there is no response. This chain is also apparently credible but of itself is also wholly irrelevant to the preliminary issue I had to decide on 16 October 2025. Ms Birkbeck could also have been approached (exercising reasonable diligence) and these messages procured much earlier.[48]Had the Claimants wished to call Mr Gorle or Ms Birkbeck to give evidence in relation to the preliminary issue on 16 October 2025 it was incumbent on them to make these enquiries well in advance of the preliminary hearing. It is far too late to be doing that three months after the preliminary hearing itself. However, the reconsideration application is not based on these individuals’ absence as witnesses: it is advanced on the basis that the subsequent existence of these LinkedIn chats renders it in the interests of justice to reconsider my earlier judgment. In my judgment, these chats are totally irrelevant and would have had no bearing on my earlier judgment even if they had satisfied the conditions of Ladd which, for the reasons I have set out, they do not.[49]The fourth document is a letter of 9 February 2026 from Mrs Green to the Respondent’s legal representative expressing an intention on the Claimants’ side to call Ms Birkbeck as a witness and requesting contact details for her. It is unclear whether that letter was answered, but that is immaterial. For very much the same reasons as expressed in the previous three paragraphs, this letter provides no basis for reconsideration.[50]The fifth document is a chain of emails between Mrs Green and Steve Mitchell, Deputy Head of Legal Services at USDAW. The email chain concerns requests made by Mrs Green for a copy of the recognition agreement between USDAW and the Respondent. The chain has the result of Mr Mitchell providing Mrs Green with a copy of that recognition agreement, on 2 March 2026.[51]Within that email chain Mrs Green cited an order made by Employment Judge Wiseman in relation to USDAW, for the specific recovery of documents. This was an order of which I was hitherto unaware, but from the Tribunal’s file it appeared to have been made on 29 August 2025. Paragraph 2 of the Schedule to the order includes reference to “any relevant recognition agreement” as a class of document to be produced.[52]This email chain is credible and would have been relevant to the matter I had to decide on 16 October 2025. However, the existence of the chain itself would have had no bearing on the outcome because all it shows is that a request was made for a document and that that request was ultimately acceded to. Such email correspondence could have been engaged in prior to the preliminary hearing (exercising reasonable diligence). For these reasons, the chain would not have satisfied the Ladd criteria of itself, in my judgment.[53]However, the document the chain had the result of procuring for the Claimants is the sixth and final document relied upon by them in their “new evidence” contention as part of this reconsideration application: the separate recognition agreement. It is the undoubtedly the critical document to the application and the Claimants ought to have focused on this document rather than relying on the others, which were generally irrelevant.[54]I was taken to that document and have read it carefully. It is undoubtedly credible and it was not only highly relevant to the matter I had to decide but it would have had an important influence on the outcome of the preliminary hearing. That is because the Support Agreement which I found covered the Member Pioneer and Member Pioneer Co-ordinator classes of employee (and thus the Claimants) from April 2023 specified that it was concluded “pursuant to a separate recognition agreement” (paragraph 15), and recognition by the employer is an essential criterion under section 188(1B) of the 1992 Act. If the Claimants could show that USDAW was not recognised in the section 188(1B) sense, the outcome may have been that they may have had standing to bring claims for protective awards.[55]However, despite the existence of Employment Judge Wiseman’s documents order of 29 August 2025 and USDAW’s apparent default in compliance, it was unclear to me what reasonable diligence the Claimants had exercised to obtain this document prior to the 16 October 2025 preliminary hearing. I was shown no equivalent to the email chain of February/March 2026 between Mrs Green and Mr Mitchell that dated from before 16 October 2025, and I was not told of what efforts had been made on the Claimants’ side to check whether USDAW had received Employment Judge Wiseman’s order at all (or to remind or encourage USDAW regarding compliance). No application was made by the Claimants for a postponement or adjournment of the preliminary hearing pending USDAW’s compliance with Employment Judge Wiseman’s order.[56]In my judgment, the recognition agreement is a document that is credible and highly relevant but could have been obtained by the Claimants, exercising reasonable diligence, prior to the preliminary hearing on 16 October 2025, especially given that the Tribunal had made an order compelling USDAW to provide it. The document therefore falls short of meeting the first of the Ladd criteria.[57]However, even if I am wrong about that my conclusion is that its availability at the time of the preliminary hearing would not have affected the actual outcome. That is different to whether the document would have had an important influence on the outcome: the question here is not whether it would, but whether it did.[58]The existence of the recognition agreement document is entirely confirmatory of my factual findings (at paragraphs 18 and 19) that such an agreement existed between the Respondent and USDAW, and that within it the Respondent recognised USDAW as having bargaining rights in respect of large segments of the Respondent’s workforce. The document itself expressly provides that USDAW is recognised as having such rights in respect of employees subject to the Support Agreement (which the Claimants all were) and that those rights extend to bargaining about pay, hours, holidays, sick pay arrangements, premiums and “any other conditions of employment which are contractual”.[59]In submissions Mrs Green sought to distance the Claimants from this document and did so by reference to the date it bears on the front page: September 2023. Essentially her argument was that because this post-dated my finding about when the Claimants were added to the Support Agreement (April 2023), there could have been no recognition agreement in force at the time the MPs/MPCs were added to the Support Agreement. In the alternative, she submitted that the Claimants could prove that the date of the “proposal to dismiss” (for the purposes of section 188(1), as clarified by Atavan) was much earlier than the time I found (February/March 2024) and that this too would mean that there was no recognition agreement in force at the material time. Accordingly, the submission went, the Claimants would have standing to pursue claims for protective awards.[60]The first of these submissions was, in my judgment, disingenuous and not based on a fair reading of the document as a whole. Before the date September 2023 is the word “Updated”, which suggests that an earlier version of a recognition agreement existed prior to that date. Furthermore, the document states further down that it was “updated in May 2021” and “further updated in 2023”, for reasons that are specified. In the email chain between him and Mrs Green Mr Mitchell explained in no uncertain terms that “I also understand that this is the most recent version of this agreement”. It was clear to me that in some form or another there did exist a separate recognition agreement from at least prior to May 2021.[61]The second of these submissions was, in my judgment, misconceived. The existence of the recognition agreement document would not cast any doubt upon my findings in respect of what is a separate decision (the “proposal to dismiss”), nor do its contents. Furthermore, on 16 October 2025 the Claimants had had their opportunity to persuade me, based on the evidence, that the Respondent had “proposed to dismiss” the employees at an earlier date. They failed to do so, and there is no compelling reason why the Claimants should be allowed a second bite of the cherry. There is a strong public interest in the finality of litigation and in my judgment, in bringing forward the recognition agreement latterly provided to them the Claimants have not displaced that factor.[62]A third submission concerned Mr Mitchell’s covering email, which stated that the recognition agreement document “is the overarching recognition agreement between USDAW and the Co-op and relates to all USDAW members within the Co-op” (Mrs Green’s emphasis added), meaning that it only related to employees who were members of the Trade Union. Whilst the email was perhaps clumsily worded by Mr Mitchell in this regard, I took the view that this submission was also disingenuous. That was because, firstly, the email did not exclude non-Union members, and secondly, it ignored the fact that the recognition agreement itself did not limit itself to bargaining on behalf of USDAW members only; indeed, it covered employees of particular classes irrespective of their Trade Union membership. I had no hesitation in rejecting it.[63]For these reasons, even if I am wrong in relation to the Ladd v Marshall point, the existence of the recognition agreement would not have changed the outcome of the preliminary hearing on 16 October 2025. For this reason, it is in my judgment not in the interests of justice to reconsider the preliminary hearing judgment. Ground 4 – Reliability of the Respondent’s witness[64]The fourth and final ground upon which the Claimants seek reconsideration is based upon their contention that I was wrong to find the Respondent’s witness – Mr Shepherd – as being a reliable witness.[65]Again, it is clear to me that the Claimants disagree with my assessment of a witness’s reliability, and of some of the things Mr Shepherd said in his oral evidence on 16 October 2025. I have considered what the Claimants said in their letter of application about this point, and also what Mrs Green said in her oral submissions, and having done so I have reached the conclusion that this fourth ground is really an attempt to re-argue the case that was rejected on 16 October 2025. This attempt offends the public interest in the finality of litigation and cannot, in my judgment, be permitted.[66]As the first-instance Judge I was entitled to assess Mr Shepherd’s credibility and reliability as a witness having heard from him in oral evidence, and in the face of a considerable challenge under cross-examination from Mrs Green. There is nothing that the Claimants have said in their application which would serve to displace those assessments and disturb my findings, even if such a challenge were permissible.[67]Therefore, for these reasons the application for reconsideration on this fourth ground is refused.[68]It further follows that the Claimants’ application for reconsideration is dismissed in its entirety.