The Employment Appeal Tribunal (EAT) recently held in the case of E Ivor Hughes Educational Foundation v. Morris that the obligation to consult over collective redundancies can be triggered when an employer makes a provisional decision to close a workplace. This case concerned a school which decided in February 2013 that it would have to close by the year's end if pupil uptake had not increased by April. The school eventually took a decision, in April 2013, to close the school at the end of the 2013 summer term but there was no collective consultation over the decision, which resulted in a breach of the Trade Union and Labour Relations (Consolidation) Act 1992. The EAT considered, having regard to previously decided cases, that the provisional decision in February 2013 was either a "fixed, clear, albeit provisional, intention" to close the school or amounted to a "strategic decision….compelling the employer to contemplate or plan for collective redundancies". As such, the requirement for collective consultation arose in February 2013.
Where there is a failure to collectively consult the Employment Tribunal can make an award of up to 90 days' pay per employee. As such, it is very important that employers get this right.