22-06-2010
Collective Consultation – How limited is the “special circumstances” defence?
(Shanahan Engineering Ltd v Unite the Union)
Where an employer proposes to make 20 or more employees redundant at one establishment within a period of 90 days or less, it is required to collectively consult. Consultation must begin at least 30 days before the first dismissal takes effect (where between 20 and 99 employees are to be dismissed.)
If an employer fails to comply with these obligations, the Employment Tribunal can award a protective award to each employee of up to 90 days’ pay.
The "special circumstances" defence allows an employer not to comply with the strict collective consultation requirements where “special circumstances” exist “which render it not reasonably practicable" for the employer to comply. There is no generic category of "special circumstances", and the existence of special circumstances is, therefore, judged on the facts of the case.
The recent case of Shanahan Engineering Ltd v Unite the Union emphasised the limited nature of the defence, and also emphasised that, even where the defence applies, it does not release the employer absolutely from the obligation to collectively consult. The employer must still take such steps as are reasonably practicable in the circumstances of the case to comply with the obligation.
It also highlighted that the burden of proof is on the employer to show the existence of special circumstances and also to show that all reasonably practicable steps were taken to comply with the collective consultation obligation.
Where an employer proposes to make 20 or more employees redundant at one establishment within a period of 90 days or less, it is required to collectively consult. Consultation must begin at least 30 days before the first dismissal takes effect (where between 20 and 99 employees are to be dismissed.)
If an employer fails to comply with these obligations, the Employment Tribunal can award a protective award to each employee of up to 90 days’ pay.
The "special circumstances" defence allows an employer not to comply with the strict collective consultation requirements where “special circumstances” exist “which render it not reasonably practicable" for the employer to comply. There is no generic category of "special circumstances", and the existence of special circumstances is, therefore, judged on the facts of the case.
The recent case of Shanahan Engineering Ltd v Unite the Union emphasised the limited nature of the defence, and also emphasised that, even where the defence applies, it does not release the employer absolutely from the obligation to collectively consult. The employer must still take such steps as are reasonably practicable in the circumstances of the case to comply with the obligation.
It also highlighted that the burden of proof is on the employer to show the existence of special circumstances and also to show that all reasonably practicable steps were taken to comply with the collective consultation obligation.
