Policy News Journal - 2015-16

The school decided in February 2013 that it would have to close at year's end if pupil numbers had not increased by April. Ultimately, the school decided to close in April 2013 and there was never any collective consultation over the decision, in breach of Section 188 of TULR(C)A 1992. The EAT considered an unresolved question from United States of America v Nolan on the different tests as to what triggers the duty to consult, whether it is an employer proposing a strategic decision that will foreseeably or inevitably lead to redundancies, or when that decision has been made and redundancies are a consequence. The EAT noted that the decision (February 2013) to close the School, unless numbers increased 'was either a fixed, clear albeit provisional intention to close the School or amounted to a strategic decision on changes compelling the employer to contemplate or plan for collective redundancies. On either analysis, the duty to consult arose on that date'. The EAT did not find it necessary to decide which test applied. The EAT also rejected a ground of appeal that special circumstances excused a failure to consult because of the need to keep the closure plans secret for fear of confidence in the school being lost. That an employer which had not thought about consultation might, with hindsight, give consideration to the practicalities of consultation is not a special circumstance excusing the duty to consult.

Information and Consultation of Employees Regulations – the meaning of undertakings 2 July 2015

The Employment Appeals Tribunal held recently that an undertaking should be a legal entity for the purposes of the Information and Consultation of Employees Regulations 2004.

Moyer Lee and others v Cofely Workplace Ltd.

Daniel Barnett’s employment law bulletin summarises:

“Undertaking” means a legal entity, namely the employer. There cannot be more than one undertaking within a single employer.

Pursuant to the Information and Consultation of Employees Regulations 2004, the Appellants made a request that their employer negotiate an agreement in respect of information and consultation of employees. To be valid, a request must be made by at least 10% of the employees in the undertaking. The Appellants comprised 28 employees (13%) of 210 employees allocated to a specific contract. The Respondent had 9,200 employees in total, of which the Appellants comprised 0.3%. The Appellants argued that an undertaking did not have to be the employer and instead could constitute a distinct group of employees within the employer’s organisation. Any other interpretation, they argued, would lead to employees in large multi-site corporations, being deprived of any meaningful protection.

Langstaff P. did not agree and held:

 The Regulations envisage 'undertaking' as a legal entity capable of being the employer of employees serving it under a contract of employment.  The distinction between undertaking and establishment in the Directive would lack meaning if a separate grouping of employees could constitute an undertaking.

The EAT found that on the facts as found by the CAC Panel, the appeal could not succeed. A reference to CJEU was refused.

Indirect Age Discrimination 30 July 2015

Is it indirectly discriminatory on the grounds of age to retire police officers entitled to receive a pension, in order to cut costs?

No, held the EAT in West Midlands Police v Harrod & Ors .

With thanks to Daniel Barnett’s employment law bulletin which provides the details of the case.

CIPP Policy News Journal

25/04/2016, Page 73 of 453

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