The employers in E Ivor Hughes Educational Foundation v Morris, a charity running a school, decided at a meeting of the governors and head teacher on 27 February 2013 to close the school unless pupil numbers increased, which was thought to be unlikely. The final decision to close the school at the end of the 2013 summer term and dismiss the staff on grounds of redundancy was taken on 25 April 2013 when final pupil numbers for the 2013 to 2014 academic year were known. The employers did not carry out any consultation with the staff before giving them notices of dismissal. 24 members of the teaching staff brought claims that the employers were in breach of their statutory obligations to consult, because they were "proposing to dismiss" as redundant 20 or more employees at one establishment within 90 days or less.
The issue of whether the consultation obligation arises when the employer is proposing (but has not yet made) a strategic decision that will inevitably lead to redundancies, or only when that decision has actually been made, is at present unresolved. The Court of Appeal is due to look again at this issue in United States of America v Nolan next month. Here, the employers argued that the question of viability could only be determined (and thus the proposal made) once the figures for pupil numbers were known, in April. However, the Tribunal and the EAT concluded that whichever approach to "proposing to dismiss" was adopted, the obligation to consult arose on 27 February. The minutes of the meeting recorded that there was a deficit that could not be accommodated and no solutions other than closure were viable. The decision was a "fixed, clear, albeit provisional intention" and/or a "strategic decision on changes compelling the employer to contemplate or plan collective redundancies", both of which are situations which have been found in previous cases to have satisfied the "proposing to dismiss" test.
The EAT also confirmed the Tribunal's decision that the need to keep the closure secret for fear of loss of confidence in the school was not a "special circumstance" excusing the failure to consult. A protective award of 90 days was appropriate given that there had been no consultation and that this resulted from the "reckless failure" to consult legal experts on the employment implications of the closure. The fact that the employees had not suffered actual loss of salary was not a mitigating factor justifying a reduction in the period of the protective award.