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31 May 2013 0 Comments
Posted in Employment, Opinion

Appropriate representatives for collective consultation

Author headshot image Posted by , Partner

In Kelly and another v Hesley Group, the EAT held that the Tribunal was wrong to conclude that members of a pre-existing consultative body were “appropriate representatives” for the purposes of a collective redundancy consultation. The tribunal should have considered whether the representatives had authority from the relevant employees to be consulted about the dismissals. In particular, the tribunal did not consider the purpose for which the body had originally been set up, or the fact that some of the members of the body were co-opted rather than elected. Furthermore the body was expressly stated as being “non-negotiating”. The case was remitted to the Tribunal for further fact finding and consideration.

However the aspect of the Tribunal decision which was upheld was the wording of TULR(C)A regarding when the duty to collectively consult arose. The wording in the section states when the employer “is proposing to dismiss” 20 or more employees as redundant. The EAT held that the words should be given their natural meaning and operate on the basis that the word is “proposed” rather than “contemplated”, which would give a different meaning – even though the Collective Redundancies Directive uses the word “contemplated” rather than “proposed”.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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