Susie Radin Ltd v GMB and Others

JurisdictionEngland & Wales
JudgeLORD JUSTICE KEENE,Lord Justice Scott Baker,LORD JUSTICE SCOTT BAKER,Lord Justice Peter Gibson,Lord Justice Longmore
Judgment Date20 February 2004
Neutral Citation[2004] EWCA Civ 180,[2003] EWCA Civ 1807
Docket NumberCase No: A1/2003/1539,A1/2003/1539
CourtCourt of Appeal (Civil Division)
Date20 February 2004

[2003] EWCA Civ 1807





Lord Justice Keene

Lord Justice Scott Baker


Susie Radin Limited

MR S JONES (instructed by Messrs Sherman Phillips, London NW6 1NL) appeared on behalf of the Applicant

The Respondent did not appear and was not represented


This is a renewed application for permission to appeal against a decision of the Employment Appeal Tribunal ("the EAT") made on 24th June 2003. By that decision the EAT dismissed an appeal by this applicant, Susie Radin Ltd, from the decision of an Employment Tribunal sitting at Newcastle upon Tyne. The respondents are the GMB Union and former employees of the applicant company who worked at the company's factory at Crook in Co Durham. They brought a complaint against the company under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act"). That provision entitles a complaint to be bought where an employer has failed to comply with a requirement of section 188 or 188A, all of these being sections in that part of the 1992 Act dealing with the procedures to be adopted for handling redundancies.


In broad terms, section 188 imposes a duty on an employer to consult representatives of employees where the employer:

"is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less,"

that last reference being to the period over which at least 20 employees are to be dismissed under what is proposed.


By section 188(1)(a) the consultation shall begin in good time and in any event at least 90 days before the first of the dismissals takes effect. If the employer fails to comply the Employment Tribunal may make a protective award under section 189(2) requiring the employer to pay remuneration for the "protected period", a period not exceeding 90 days.


In the present case notices of dismissal went out on 20th April 2000, giving 14th July 2000 as the date of termination of employment and indeed on that latter date the factory duly closed.


The Employment Tribunal upheld the respondents' complaint and made a 90-day protective award. It expressed itself satisfied that at least by the time one of the two directors of the applicant company, Mr Grant, wrote a letter dated 20th March 2000 the company was proposing to make the workforce redundant.


On receipt of that letter, the GMB's officer, Miss Woodhall, tried to contact Mr Grant but was unable to do so. By a letter dated 6th April 2000, a solicitor for the company informed the workforce that:

"Subject to any consultations, the proposed method of dismissals will be by serving a twelve week notice of dismissal for reasons of redundancy anticipated to terminate on 14 July 2000."

The letter suggested a meeting with Miss Woodhall to discuss the proposals and for consultations. According to the Employment Tribunal's extended reasons:

"Miss Woodhall immediately tried to contact Mr Grant but was told that he was in Hong Kong. Mr Grant and Ms Radin were in Hong Kong until 17–18 April 2000. Miss Woodhall … was eventually informed that Mr Grant was going to the factory on 19 April 2000."


There was then on that date a somewhat acrimonious meeting at the factory, but the Employment Tribunal concluded:

"No information was provided to Miss Woodhall about the financial situation of the respondents or what they had tried to do to alleviate the need for redundancies or what might be contemplated could be done to alleviate those redundancies. None of the information required by section 188(4) was provided to Miss Woodhall. The meeting was short and was brought to a conclusion. There was no consultation."

The following day the notices of dismissal were sent out.


The Tribunal concluded overall that there was no consultation carried out and that there was a complete failure to comply with section 188. To reflect the seriousness of that, it made the 90-day protective award.


The EAT upheld that decision. It concluded that it was a proper inference from the known facts and documents that the company had decided to propose redundancies before it consulted solicitors in late March 2000. The EAT also held that there was overwhelming evidence that there was no consultation (see page 8 of its judgment). Finally, it concluded that the 90-day protective award was one which it was open to the Employment Tribunal to regard as being "just and equitable in all the circumstances", a passage taken from section 189(4).


On behalf of the company, Mr Jones now advances three basic grounds of appeal. It is convenient to take them in the reverse order in which he has advanced them this morning, for reasons which will become clear in due course.


First of all, it is said that the Tribunal erred in not fixing a date at which the company was found to have proposed redundancies. One needs to know that in order to apply the test in section 188(1A) namely that consultation shall begin "in good time". It is also contended that the Tribunal was perverse in finding that the company was "proposing" as opposed merely to contemplating redundancies prior to the visit to the solicitor in late March.


I say straightaway, I find these arguments on this particular point wholly unpersuasive. It is sufficiently clear on any sensible reading of the Tribunal's decision that it was finding that by 20th March 2000 the company was proposing redundancies. Certainly there are suggestions in the extended reasons that that situation may have arisen before that date. But paragraph 33, to my mind, makes it clear that the Tribunal was satisfied that at least by 20th March that was the case.


As for perversity over the concept of "proposing", the Tribunal spelt out its reasons in that same paragraph for arriving at that finding. It based it on the consultations with the company's accountants at some time in March, and on the finding that the co-directors then saw their solicitor to get legal advice on how to achieve the redundancies. The Tribunal, I stress, heard oral evidence from both the co-directors of the company and from its solicitor as well as looking at the documents, and its reasoning seems to me to make good sense. I cannot see any perversity argument getting off the ground on this particular point. In any event, this first ground is of little relevance if the Tribunal was entitled to conclude, as it did, that there was no consultation in the sense required by section 188. I turn to that point next.


It is contended that the Tribunal erred in finding there was no such consultation. Mr Jones accepts that section 188(2)(a) to (c) are to be read disjunctively, so that there must be consultation about ways of doing all the three things which are referred to in that subsection. But he submits that the Tribunal equated the company's belief that total closure was the only option and the firmness of that belief with a failure to consult as required. He criticises the use by the Tribunal of the word "tentative" in its reasons where it indicated that the employer was in no sense tentative about its closure proposal. It is also said that the Tribunal regarded the employer as not being genuine about consultation and that that infected the whole of its reasoning.


I cannot accept that the Tribunal equated the company's belief that closure was necessary with an automatic failure to consult and that it somehow failed to distinguish the two. The Tribunal in its extended reasons goes through what the company's representatives did at various dates in the period prior to 14th July. It noted that no information was provided at the 19th April meeting about the financial situation or what might be done to alleviate redundancies. It considered a meeting which took place with all employees in the canteen and found that that did not meet the statutory requirements. It took account of a meeting on 13th June at which the employees' side were expected to come up with proposals by the company, even though they had not been provided with the information which would enable them to do so, and it considered the correspondence.


In my judgment, the Tribunal adopted a proper approach to the topic of consultation. It is well established that consultation under section 188 must be meaningful (see TGWU v Ledbury Preserves [1985] IRLR 412, paragraph 11). To my mind that means that the consultation must first of all be such that the representatives of the workforce and the non-union employees are able to have some meaningful discussion with the employer about whether or not redundancy can be avoided or whether the number of employees to be dismissed may be reduced, those being two of the particular factors referred to in section 188(2). Nothing of that kind seems to have happened here. The EAT surveyed the facts on this topic at paragraph 19 in their judgment, and I agree with their conclusion that there was overwhelming evidence that there was here no meaningful consultation. Nor do I accept that the Tribunal, merely because it took the view that at one stage the company was only going through the motions, did not properly consider whether meaningful consultation had taken place. I can see no prospect of a successful appeal on this ground.


That brings me to the last of the matters raised by Mr Jones today which he puts at the forefront of his submissions, and in my view rightly. The applicants challenge the amount of the protective award. It is argued that the Tribunal erred by...

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