"1. The trade union Unison, which is recognised by the respondent as representing a substantial number of its employees, complains that, in implementing the results of a job evaluation scheme by the process of dismissing all employees whose terms and conditions of employment were to be changed to their disadvantage and simultaneously offering them re-engagement on the new, less favourable terms, the respondent was in breach of its obligation to consult with them imposed bysection 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 . It seeks a protective award in respect of three descriptions of employees: the downgraded group, said to number about 800 who, as a result of the job evaluation exercise were to be placed in a lower grading in the pay structure: the bonus group, said to number about 300, whose bonus payments were adversely affected by the exercise; and the enhancement group, said to number 1550, whose rights to such things as unsocial hours and weekend working supplements and overtime were adversely affected. Because of the way the scheme was implemented, the downgraded and bonus groups can conveniently be dealt with together and they will be referred to hereafter as the downgraded group."
" TULR(C)A Section 188 provides in material parts as follows: '(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. (1A) The consultation shall begin in good time and in any event- (a) where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days, and (b) otherwise, at least 30 days, before the first of the dismissals takes effect. ……… (2) The consultation shall include consultation about ways of- (a) avoiding the dismissals, (b) reducing the numbers of employees to be dismissed, and (c) mitigating the consequences of the dismissals, and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives. (4) For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives- (a) the reasons for his proposals, (b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant, (c) the total number of employees of any such description employed by the employer at the establishment in question, (d) the proposed method of selecting the employees who may be dismissed. (e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect and (f) ……. If a complaint is well founded a tribunal must make a declaration to that effect and has a discretion also to make a protective award. The protective award orders the employer to pay remuneration for the protected period (Sec 189(2) and (3)). Section 189(4) provides: 'The protected period- begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer's default in complying with any requirement of section 188; but shall not exceed 90 days.'"
"[195 Construction of references to dismissal as redundant etc (1) In this Chapter references to dismissal as redundant are references to dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related."
"Article 2 1. Where an employer is contemplating collective redundancies, he shall begin consultations with the workers' representatives in good time with a view to reaching an agreement. 2. These consultations shall, at least cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures aimed, inter alia , at aid for redeploying or retraining workers made redundant. Member States may provide that the workers' representatives may call on the services of experts in accordance with national legislation and/or practice."
"7.1 In 1997, an agreement known as the Single Status Agreement, applicable to all local authorities, was negotiated at national level. It required each local authority to review the pay and grading structures of its administrative, professional, technical and clerical grades on the one hand and its manual grades on the other, and produce a single unified pay structure covering both. This required each job to be evaluated under a recognised job evaluation scheme and placed within the single structure. 7.2 In consequence of this process, some employees were likely to be upgraded, some downgraded – that is placed in a lower salary band than at present – and some would stay the same. As part of the negotiations, at least at Leicestershire, other elements of the pay package, such as unsocial hours payments, overtime, bonuses and the like were also discussed. Other than bonus payments, these can conveniently be described collectively as enhancements. The respondent was anxious to reduce the amount it spent on enhancements, particularly in its Social Services Department. 7.3 Discussions about applying the Single Status Agreement began in 1999. The original intention was that the new grading structure would be implemented by 1 st April 2001. This proved impossible and the date was changed to the autumn of that year and then to 1 st September 2002, this date being announced by the then Leader of the Council at a Council Meeting in March 2002. 7.4 Between July 1999 and May 2002 there were 16 meetings between the management and union sides (seven trade unions were involved) for the purpose of keeping the union side informed of progress on the technically complex task of evaluating some 9000 jobs, the unions having decided not to involve themselves in the actual process of evaluation. By June 2002 the majority of jobs within the Council (other than school based jobs) had been evaluated and the respondent's attention therefore turned to a range of related industrial relations issues which would have to be addressed before the outcomes of the evaluation process could be implemented. These included, the proposed unified grading structure; grading outcomes and pay scale,; phasing in the cost of upgrading staff (about 50% of the workforce would be upgraded); the protection period for those to be downgraded; harmonisation of enhancements; outstanding grading reviews and an appeals process; back-dating; a support programme for down graded staff; and the difficult issue of market premia, that is uplifts to reflect the going market rate for certain posts."
"9.3 That the formal political decision to proceed by way of dismissal and re-engagement was taken at a meeting of the Employment Committee on the 12 th December 2002 seems clear. But there is every reason to suppose that in reality the decision had already been taken for all practical purposes. Mr Shipton told us that by that date the great bulk of the work necessary to carry out the decision had already been done. The Christmas holidays were not far away, and the letters to employees – some 2650 – were to be sent on the 30 th December. Given the amount of officer time this would have required and the cost involved in preparing the letters, there can have been little if any doubt about what the political decision would be. The contemporary documents support this view. 9.4 In his report to the Employment Committee of the 18 th November, Mr Shipton reported that: 'The County Council is now considering proposals to implement job evaluation following the failure to reach an agreement with the trade unions. This will mean that the Council will be required to give employees (who are downgraded or subject to a reduction in enhancement payments) notice terminating their current contract of employment and simultaneously offering a new contract of employment … Since this is a dismissal, individual members of staff would be entitled to pursue unfair dismissal claims ….' The report was noted. 9.5 In a letter of the 14 th November from John Legrys, the Secretary to the union side, the County Solicitor was asked: '3 Revocation of existing employment contracts and the issue of new contracts. It is understood that from discussions at Departmental level preparations are now being made for the issue of these notices in January 2003. Can you please confirm when the notices are to be issued? In addition for the avoidance of doubt the Trade Union side will not accept or agree to a notice being place [sic] on the back of a 'Staff Bulletin' … Each individual employee must be given formal notice in accordance to [sic] legislation' 9.6 in her reply dated the 25 th November, the County Solicitor, Elizabeth McCalla, replied: '3. I can confirm that, where staff are being downgraded, the intention is to issue notices early in the New Year. Each notice will have to address the employee's individual circumstances …The timing does, however, depend on discussions taking place at regional level arising out of the failure to agree and final decisions being taken by the Employment Committee.' 9.7 The reference to 'final' decisions of the Employment Committee which would affect the 'timing' is instructive, as is the absence of any suggestion that, timing apart, nothing is yet certain. Read together with Mr Legry's letter to which it is a reply, and the considerable level of activity already underway to implement the strategy, there can be little doubt that, if section 188(1) does require a decision to dismiss to have been taken before the duty to consult arises (which in our judgment it does not) then, for all practical purposes such a decision had taken place. All that took place on the 12 th December was the announcement of a decision already arrived at. Quite clearly, given the tenor of the County Solicitor's letter and the background activity, any proposal to dismiss was as much that of the elected members as the officers. The duty to consult was therefore triggered by mid-November at the latest. 9.8 On the 13 th December Mr Shipton wrote to Mr Legrys informing him of the formal decision of the committee of the previous day 'to proceed with imposing job evaluation' but not explaining how it was to be done. On the 20 th December a document describing itself as a consultation notice under section 195 of the 1992 Act and purporting to contain the information required by section 188(4) was sent to Nasima Sarang the local Unison Branch Secretary. The covering letter simply invited her 'to discuss this notice'. 9.9 In our judgment, the timing of the formal announcement to the union that dismissals were to take place – which was the notice of the 20 th December rather than the letter of the 13 th December – coming as it did at least a month after the decision, places the respondent in clear breach of their duty under section 188(1) and (2) to consult 'in good time.'"
"14.4 Following the Susie Radin case, it seems to us that the only award which it is appropriate for us to make in respect of the downgraded group (including the bonus group) is of a protected period of 90 days. There was an intentional and total failure to consult; a delay – which can only have been intentional – in informing the unions of the proposal to dismiss, and only partial compliance with the information requirements in subsection (4)."
"15.1 Although the criticisms of the respondent which we have made in respect of the delay in notifying Unison of the proposal to dismiss and the incompleteness of the disclosure of information apply equally to the enhancement group, the failure to consult does not. This is recognised by Miss Gower who invites the tribunal to make the protected period only 45 days, half the maximum. 15.2 We have criticised Mr Wyatt's submissions where they fail to distinguish between negotiations about the job evaluation scheme and about the dismissals, and at first sight, in accepting Miss Gower's concession we appear to be falling into the same trap. But this is not the case. Once the decision was taken to enforce the changes in enhancements by dismissal and re-engagement, compliance with section 188(2) was only possible by a willingness to negotiate about those enhancements with a view to reaching agreement which could have included an alternative method of implementation, thus avoiding the dismissals. 15.3 By far the greater degree of culpability falls upon the trade union side who simply did not pick up the respondent's invitation to consult. The only criticism of the respondent, and it is a slight one in the circumstances, is that they could perhaps have repeated the invitation at a somewhat earlier stage. That they remained sincere in their desire to discuss and reach an agreement is not in question. 15.4 There remain the failure in respect of the late notification of the proposal and the shortcomings in the information provided. These are relatively minor and in our judgment it would be just and equitable to confine the protected period for the enhancement group to 20 days."
"9.1 The meaning of this phrase in section 188(1) is not without difficulty, not least, because the equivalent provision in the Directive (article 2) uses the phrase 'contemplating' dismissals. We are of course aware of the need to distinguish between the proposals of officers and the decisions of politicians, without which nothing can happen (see, in a corporate context MSF -v- Refuge Assurance Plc[2002] IRLR 324 EAT) but in our judgment, a proposal must be less than a decision that dismissals are to be made and more than a possibility that they might occur."
"38 We have earlier mentioned the passing observation of Phillips J in Avon, that for the purposes of s99 EPA 'dismiss' refers to the giving of notice and not its expiry. That observation was not necessary for the decision in that case and appears to have been made without the benefit of full argument. At all events we are satisfied, and it is common ground between counsel appearing before us, that it is not correct."
"The legal principles 28. The legal principles to be applied in a case such as this have been approved by the Court of Appeal, most recently in Orthet Limited v Sarah Vince-Cain . There were two judgments which I handed down on behalf of the Employment Appeal Tribunal and two judgments of the Court of Appeal which Lord Justice Sedley, with Lord Justice Peter Gibson agreeing, handed down refusing permission to appeal. 29. In our first judgment UKEAT0801_03, we set out the law as we understand it in relation to the hearing of new points at the Employment Appeal Tribunal: 'As can be seen from our first preliminary ruling, this is a point which is free of authority. We do not shrink from our duty to determine a point fairly put to us by an Appellant aggrieved at a decision on a matter of law made by an Employment Tribunal. The principle, however, which requires us to operate when a new point arises is clearly set out in the following authorities, in addition to Kumchyk : Jones v The Governing Body of Burdett Coutts School[1999] ICR 38 CA; Hellyer Brothers Ltd v McCleod[1987] ICR 526 CA; Glennie v Independent Magazines (UK) Limited[1999] IRLR 719 CA; Mensah v East Hertfordshire NHS Trust[1998] IRLR 531 CA; Divine-Borty CA; Craig EAT; Dimtsu EAT; Derby EAT. Of those, 5 Court of Appeal and 4 EAT authorities dealing with the issue of new points, it is fair to say that they point in one direction, which is that new points may only in exceptional circumstances be raised at the EAT. The high water mark we suppose is Mensah where a point of law wrongly conceded by counsel could not be unpicked on appeal to the EAT however unfair that result might appear. Those then are the principles which inform our approach to the submissions.' 30. The Court of Appeal of appeal approved of that approach: see24 June 2004 , para 12 31. It again approved that approach when the matter came back before it: see25 September 2004 , para 20. 32. In the judgment of the Court of Appeal, Robert Walker LJ in Jones v Governing Body of Burdett Coutts School[1998] IRLR 521 paragraphs 19, 20 and 29, it is clear that a new point of law may not be taken simply because it is arguably or even demonstrably correct by the time it reaches appeal."