Independent Insurance Co Limited (In Provisional Liquidation) v Aspinall and another UKEAT/0051/11

Independent Insurance Company - IIC- went into provisional liquidation in June 2001.  Half of its employees were made redundant including Mr Aspinall and Mrs O’Callaghan.  They issued proceedings claiming a protective award when IIC failed to comply with its collective consultation obligations, consult with employee representatives or arrange for necessary elections.   

They did not purport to claim an award in respect of any other group of employees in a similar position to themselves.  The tribunal upheld their claims and awarded a maximum protective award of 90 days’ pay.  The tribunal also ordered protective awards for the other employees at IIC’s office where Mr Aspinall and Mrs O’Callahghan worked.  IIC appealed and the EAT allowed the appeal.  In cases where there was no recognised trade union or elected representatives there was nothing to suggest that an individual employee could be considered to represent all the other employees in similar circumstances.  

Key point:  Employers who fail to elect representatives may face multiple individual claims but an individual claimant may not now threaten to bring a group action on behalf of all the other employees where they are not the elected employee representative.

– Election of Representatives

Phillips v Xtera Communication Limited UKEAT/0244/10

Where an employer wishes to dismiss as redundant 20 or more employees at one establishment within 90 days it is required to inform and consult appropriate representatives of the affected employees.  If there is no recognised trade union then the employer can choose to inform and consult another existing body of representatives of the affected employees or if no such representatives exist the employer can hold an election to appoint new representatives for the purpose of collective redundancy consultation.  If the employer fails to arrange an election or to comply with the rules on elections then the affected employees may be awarded a protective award. 

Mr Phillips was selected for redundancy and brought a claim for unfair dismissal, he also claimed Xtera had failed to comply with the statutory requirements for the election of employee reprepreatives and he was therefore entitled to a protective award.  The employment tribunal disagreed and dismissed all his claims.  As the same number of employees had come forward for election as Xtera had decided were needed namely 2 and where no objections had been received, it was not necessary for Xtera to hold an election.  Mr Phillips appealed but his appeal was dismissed by the EAT.   

The EAT was asked to decide whether an employer breached the statutory rules on elections when it appointed the only candidates for the same number of employee representative positions, without holding an election.  The answer was no.  An employer can treat the candidates as elected without holding an actual ballot where the number of candidates match the number of vacancies.  There is no statutory requirement that a ballot has to be held in an uncontested election.   

Key point:  This decision could lead to elections being less fair if certain candidates are elected without a ballot at the instruction of an unscrupulous employer or group of employees.  The Government is reviewing collective consultation periods which are seen as too onerous by some employers in any event.