Most trade union officials are all too familiar with the provisions of s188 of the Trade Union and Labour Relations (Consolidation) Act.

Basically it says that if employers are going to make 20 or more employees redundant within 90 days, they have to consult the appropriate representatives of anyone who might be dismissed 'in good time', and provide them with certain bits of information.

What happened in this case?

In Securicor Omega Express Ltd v GMB (IRLR 2004, 9) Securicor decided to close two of its branches towards the end of November 2001. Union representatives attended a meeting on 10 December at which they were told that there would be about 55 job losses.

The agreement with the union stated that employees would be selected for redundancy on the basis of last in, first out.

Representatives at the meeting also discussed the issue of voluntary redundancy, the possibility of relocation for others and help with finding alternative employment. The minutes of the meeting were circulated to all the union reps.

The announcement about the redundancies was made on 11 December and the individual employees affected were consulted. The job losses were limited in the end to 32 and took effect on 18 January 2002.

What claim did the union bring?

But the union claimed that Securicor had not complied with the provisions of the legislation in that it had not consulted with the union under s188(2) about ways of: 

  • avoiding the dismissals 
  • reducing the numbers to be dismissed 
  • mitigating the consequences of the dismissals. 
    The union also claimed the company had not given them the written information that was required of them under s188(4). That is, to provide information about the redundancies in writing, including the reasons for them and the numbers and descriptions of the employees whom they propose to dismiss.

What did the courts say?

And the tribunal agreed. It said there'd been no consultation to consider ways of avoiding dismissals and reducing the number of redundancies.

There had effectively been no consultation at all because the decision to make redundancies had been made before the meeting on 10 December.

What do employers have to consult about?

But the employment appeal tribunal (EAT) disagreed. It said that although consultation has to be meaningful, that did not include consulting about 'the economic background or context in which the proposal for redundancies arises'.

The view of the EAT, therefore, was that the union did not have to be consulted on the branch closures per se. The obligation on the company to consult was limited to the question of redundancies that arose as a consequence of that decision. In other words, trying to reduce or possibly even avoid them.

And that was what the employers did both at and after the meeting on 10 December. They consulted about ways of avoiding the dismissals, reducing the numbers to be dismissed and mitigating the consequences of those dismissals.

In addition, the EAT said the employer had fulfilled the requirement under s188(4) to disclose specified information in writing. The union was wrong to suggest that information had to be disclosed prior to the meeting.

However, it did agree that since the minutes of the meeting didn't fully comply with s188(4) - nothing was mentioned about the total number affected by the redundancies or how their redundancy pay would be calculated - it made a nominal protective award of one day's pay to everyone made redundant.