Collective Consultation – headaches ahead
This is a warning!! Word has it (well, according to a press release issued by the union’s lawyers, available here) that the EAT has ruled that where an employer proposes to make 20 or more redundancies over a period of 90 days, it will now have to consult collectively with employee representatives, irrespective of whether those employees are based at one large site or over several locations. Up until now employers have only needed to consult where the redundancies are all taking place in ‘one establishment’, which has been held to be the individual site to which the employees are assigned.
The EAT’s decision is due to be released shortly so we will reserve the majority of comment until then, but the result would, if applied, certainly mean more administration and more risk for larger UK employers – both in terms of the co-ordination which would be required, and also the fact that collective redundancy consultation would be required more frequently. This judgment sits very badly with the well-established body of case law on this subject, so it is quite likely that it might be overturned in the Court of Appeal (if it is appealed up to that level) or overturned by another judgment in another, future, case.
Summary: Where there is a history of mutual allegations of misconduct between an employer and employee, do those allegations render it impractical for the employer to re-engage the employee in a different location to that where he previously worked?
Not necessarily, said the EAT in Oasis Community Learning v Wolff, available here.
Facts: Oasis Community Learning (Oasis) is a company specialising in taking over failing schools in order to improve them. Mr Wolff was first employed by Oasis at a school in Lincolnshire in 2008. He was then suspended following allegations about his conduct and was eventually dismissed in 2010. Mr Wolff subsequently brought a claim for unfair dismissal, which was successful. Following a remedy hearing in early 2012, the Tribunal found that although reinstating Mr Wolff to his old job in the Lincolnshire school was not practical, it was possible to re-engage Mr Wolff at a different school run by Oasis, in Surrey.
Oasis appealed the decision on the basis that the relationship between itself and Mr Wolff was irreparably damaged and that re-engagement would not work. In particular, Mr Wolff had made various allegations against members of the Oasis staff, including allegations that they had fabricated and suppressed evidence.
The EAT dismissed the appeal and upheld the re-engagement. It found that Mr Wolff was “willing and able to start a new page” at his new school. This was despite the fact that he was working with the same employer and he would have to deal with the same HR Department. However, the EAT still found that the allegations he had previously made would not necessarily impact on the relationship he would have with different colleagues and managers at a different workplace.
Implications: Happily it is rare that employees who bring unfair dismissal claims against their employer ask to be re-engaged. Further, the general rule still remains that where there has been a particularly contentious dispute between parties, it will not normally be practicable for the employee in question to be reinstated or re-engaged. However, it is well worth noting that the outcome in this case suggests that it is easier for a successful employee to be re-engaged where the employer has various offices.
Overall, employers do need to be aware that if unfair dismissal proceedings are raised against them and the employee has ticked the box for re-engagement or reinstatement, then the Tribunal may make an order for the same. This would generally require the employer to make up all the employee’s lost salary and benefits for the period between dismissal and the date of reinstatement. If a Respondent fails to comply with such an order, then they will also risk incurring a penalty of between 26 and 52 weeks of the employee’s pay.