University of Stirling v University and College Union EATS/0001/11

A failure by an employer to comply with its collective consultation obligations under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) exposes it to the risk of a protective award in an Employment Tribunal.

Section 195 of TULRCA confirms that for the purposes of collective consultation, “dismissed as redundant” means dismissal for a reason (or a number of reasons all of which are) not related to the individual concerned. There is a statutory presumption that a dismissed employee was “dismissed as redundant” unless the employer proves to the contrary.

In this case, the Scottish EAT considered whether the expiry of a fixed-term contract constituted a “redundancy” under the broader definition in section 195 of TULRCA.

Upholding the employer’s appeal against the earlier finding of an Employment Tribunal, the EAT held that the employees who were dismissed on expiry of their fixed-term contracts did not fall within the definition of redundancy in TULRCA in this case. The reason for their dismissal was one "relating to them as individuals" and not redundancy, as the reason for the non-renewal of their contracts was simply their termination of employment in the normal course. It did not relate to a wider business decision.

The result was that those employees did not count in the calculation of the number of employees the employer was “proposing to dismiss as redundant” in the relevant 90 day period under section 188 of TULRCA.

Implications

The EAT's decision in this case confirms that the expiry of a fixed-term contract will not always count as a “redundancy” for the purposes of collective consultation. While this is helpful for employers it should be kept in mind that such dismissals may count, however, if the reason behind the dismissal is the same as that behind other redundancies.