Collective Consultation

[Thanks to Michael Duggan of Littleton Chambers for providing this case summary]

The EAT (HHJ Richardson) has handed down its decision in Shanahan Engineering v UNITE, which is authority for the proposition that even where there are special circumstances which mean that it is not reasonably practicable for the normal 30 day collective consultation period under s188(1A) of TULR(C)A 1992 to be complied with, this will not relieve the employer of its actual consultation obligations under sub-sections 188(2)(4) which can still be carried out in a shorter period of time.

Shanahan was instructed to alter its work practices by the end of the day on 1st May 2008 pursuant to a clause which was common in the engineering industry whereby the main contractor could order the sub-contractor to stop work. This meant an immediate reduction in the workforce and the triggering of the collective consultation provisions. Shanahan applied agreed redundancy criteria but it was found by the ET that there was no consultation which could have taken place over 2-3 days so that 90 day protective awards were ordered.

The EAT upheld the Tribunal judgment that special circumstances existed in relation to the 30 day time period but that it had been reasonably practicable for Shanahan to carry out consultation in accordance with the requirements of section 188(2) and 188(4) of TULR(C)A 1992. However, the Tribunal had erred in simply awarding a 90 day protective award as there were mitigating factors and the case was remitted to the Tribunal on this issue.

The case is of some important for the construction industry as the above is a common situation.