The Employment Appeal Tribunal (EAT) has decided, in the case of Lancaster University v The University and College Union, that it was appropriate to reduce a protective award from the maximim 90 days' to 60 days' pay, in circumstances where the Union had "effectively condoned" the procedure adopted by the University for dealing with expiry of fixed term employees' contracts of employment.
The University employed several employees on fixed term contracts, which expired at different times, depending on the duration of funding that had been secured by the University for particular posts. The notification and consultation procedure, adopted by the University, involved notifying the employees in writing to warn them that, on the expiry of the fixed term, their employment would be at risk if funding for their contracts was not renewed. Consultation meetings covered the reasons for the proposed dismissal, the possibilities of redeployment, extending the contract, securing further funding, alternative projects and career development. The University also provided the Union with lists of staff whose contracts were due to expire in the following four months. This procedure, in agreement with the Union, had been in place for 12 years.
In 2008, there was a new regional support officer for the Union. She complained, initially to the University and, when no changes were made, to the employment tribunal that the agreed procedure did not meet the minimum statutory requirements for collective consultation, where more than 20 redundancies were proposed within a 90 day period. In particular, the Union claimed that the University had failed to comply with its statutory obligations by failing to meet with union representatives to discuss ways of avoiding the dismissals, reducing the numbers to be dismissed and mitigating the consequences of the dismissals. The Union also alleged that the information provided by the University failied to include all the required details, including the proposed method of selection for redundancy and the proposed method of carrying out the dismissals.
The EAT agreed with the Union, upholding the tribunal's original decision that the Univeristy had failed to undertake meaningful consultation and provide the full information as required by statute. It also upheld the tribunal's decision to award only 60 days' rather than the maximum of 90 days' pay, taking account of the mitigating factor that the union had "effectively condoned" the practices over such a long period. Although the EAT was "troubled" by the tribunal's reliance on the history of an accepted redundancy procedure, the tribunal had not acted unreasonably in taking it into account. The EAT also confirmed that the Tribunal had been correct to reject the University's further arguments on mitigation, concerning its lack of control over the process and the lack of prejudice to employees, on the basis that futility of fuller consultation is no defence.
Impact for government and public sector employers
- This decision highlights that reliance on accepted and agreed collective consultation procedures with a union, does not absolve employers of the requirement to comply with their statutory obligations. Although the protective award was reduced by a third in this case, the employer was still penalised for failure to comply with its obligations.
- Government and public sector employers should ensure that any agreed procedures relating to collective dismissals, whether on the expiry of fixed-term contracts or in other redundancy situations, meet with minimum statutory requirements.
- Whilst the EAT did not seek to interfere with the tribunal's decision to reduce the protective award from the maximum down to 60 days' pay, it was "troubled" by the tribunal's reliance on the history of the agreed procedure as a mitigating factor. Accordingly, employers should be aware that, in different circumstances, or before a different tribunal, reliance on an agreed procedure may not be accepted as as a mitigating factor.