The Employment Appeal Tribunal (EAT) has confirmed in the case of E Ivor Hughes Educational Foundation v Morris that the duty to commence collective consultation arose when a provisional decision was made to close a school.
Where an employer is proposing to dismiss 20 or more employees at one establishment within a period of 90 days there is a duty to consult with a recognised trade union or employee representatives. A failure to do so can result in a protective award of up to 90 days’ uncapped pay for each employee who was made redundant. Protective awards are penal, intended to punish the employer for failure to comply with its obligations, and do not depend on the employee suffering any loss. A special circumstances defence is available where it was not reasonably practicable for an employer to meet its collective consultation obligations but only where it took all such steps as were reasonably practicable in the circumstances to comply.