University and College Union v University of Stirling
| Jurisdiction | Scotland |
| Judge | Lord Reed,Lord Hughes,Lord Wilson,Lady Hale,Lord Sumption |
| Judgment Date | 29 April 2015 |
| Neutral Citation | [2015] UKSC 26 |
| Date | 2015 |
| Docket Number | No 8 |
| Year | 2015 |
| Court | Supreme Court (Scotland) |
[2015] UKSC 26
THE SUPREME COURT
Easter Term
On appeal from: [2014] CS1H 5
Lady Hale, Deputy President
Lord Wilson
Lord Sumption
Lord Reed
Lord Hughes
Appellant
Caspar Glyn QC Tom Brown
(Instructed by Maclay Murray & Spens LLP)
Respondent
Brian Napier QC Hugh Olson
(Instructed by Anderson Strathern Solicitors)
Heard on 21 January 2015
(with whom Lord Wilson, Lord Sumption, Lord Reed and Lord Hughes agree)
An employer which proposes to "dismiss as redundant" 20 or more employees at one establishment within a period of 90 days or less has an obligation to consult the appropriate representatives, usually a recognised trade union, of any of the employees who may be affected: section 188(1), Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act"). The question in this case is whether those employees include people employed on limited term contracts ("LTCs") whose contracts will come to an end without renewal during the relevant period. This in turn depends upon two questions, one straightforward and one not so straightforward. The first is whether the expiry and non-renewal of an LTC amount to a dismissal for this purpose: it does (see para 15 below). The second is whether such a dismissal is "for a reason not related to the individual concerned", which is the statutory definition of a dismissal "as redundant" in this context: section 195( 1), 1992 Act. That is the issue.
In the year 2009 to 2010, the University of Stirling had a projected deficit of some £4.4m. It proposed, therefore, to make up to 140 of its permanent staff redundant. It notified the Department of Business, Innovation and Skills to this effect. On 15 July 2009, it began collective consultation with the relevant trade unions, including the University and College Union. It also launched a voluntary severance scheme and accepted 134 applications from members of staff to take part. In October 2009, therefore, the University concluded that there was no need for compulsory redundancies and the collective consultation process was concluded.
However, the University did not consider that it needed to include in the collective consultation process employees who were employed under LTCs which were to come to an end during the consultation period. The Union, on the other hand, considered that they should have been included and brought complaints that the University had failed to comply with its legal obligations. It was decided that the Employment Tribunal should consider whether such employees were dismissed "as redundant" by reference to four test cases.
Dr Harris was employed as a post-doctoral research assistant. Her contract was due to expire on 16 August 2009 and the University resolved not to renew it. Dr Doyle was employed to co-ordinate and deliver three undergraduate modules in English Studies in the spring semester of 2009. Her contract was not renewed when the semester ended on 29 May 2009. Ms Fife was employed to provide maternity cover, initially until 2 May 2009, extended until 4 September 2009, and again until 9 October 2009. Between 10 October 2009 and 10 September 2010 she was employed on a casual basis. Ms Kelly was originally employed to provide sick leave cover for one month in July 2007, and then from 1 October 2007 to 31 March 2008. Her employment was then extended until 30 September 2008 and then to 30 September 2009, partly because she was a named researcher on a number of projects and partly to cover for a colleague who was working reduced hours after returning from maternity leave.
It is, as the Employment Tribunal found, common practice for this University (and indeed other universities) to obtain external funding for specific research projects. Those funds will allow for the employment of research assistants to work on the particular research project under the supervision of a permanent member of the academic staff. It is common for the researcher's contract of employment to be limited either in time or by the specific task to be carried out. When that happens the researcher will not be re-employed unless funding for the project has been extended or funding is obtained for a new project for which he or she is suitable. Some researchers therefore move from institution to institution, according to the research projects which become available. This is considered beneficial to their own career development as well as to the institutions involved.
The Employment Tribunal held that Dr Harris, Dr Doyle and Ms Kelly had all been dismissed "as redundant" for the purpose of the consultation requirement; it was not satisfied that Ms Fife had been dismissed at all. The Employment Appeal Tribunal held that all four of the test case employees had been dismissed, but that none of them had been dismissed as redundant: [2012] ICR 803. The Inner House agreed with the Employment Appeal Tribunal: [2014] CSIH 5, 2014 SLT 352. The Union appeals to this court.
The provisions with which we are concerned were first enacted in Part IV of the Employment Protection Act 1975 ("the 1975 Act"). This was designed to implement in UK law the requirements of European Union law contained in Council Directive 75/129/EEC on the approximation of the laws of the member states relating to collective redundancies. Part IV of the 1975 Act was consolidated as Part IV, Chapter II, of the 1992 Act. In its turn, Council Directive 75/129/EEC was consolidated in Council Directive 98/59/EC of the same name ("the Directive"). For the purpose of the Directive "'collective redundancies' means dismissals effected by an employer for one or more reasons not related to the individual workers concerned …" (article 1.1(a)). This definition was also contained in the earlier Directive.
However, the Directive does not apply to "collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks except where such redundancies take place prior to the date of expiry or the completion of such contracts" (article 1.2(a)). Thus, the United Kingdom does not have to include workers employed under such LTCs in its provision for consultation about collective redundancies, and in fact, with effect from 6 April 2013, they have been excluded. But that was after these proceedings were begun. Before then, UK law gave such workers greater protection than is required by EU law (see the Opinion of Advocate General Wahl in Andrés Rabal Cañas v Nexea Gestión Documental SA, Fondo de Garantía Salarial ( Case C-392/13), 5 February 2015, paras 72–75).
The evolution of the relevant UK law, as contained in the Trade Union and Labour Relations (Consolidation) Act 1992, is relevant. The duty to consult is contained in section 188(1) (formerly section 99(1) of the 1975 Act). As originally enacted, this required an employer who proposed to "dismiss as redundant" a single employee to consult the recognised trade union. This obligation did not apply to employment under a contract for a fixed term of three months or less or for a specific task which was not expected to last for more than three months where the employee had not been continuously employed for more than three months (section 282(1)); but it did apply to anyone else employed under a contract limited to a term or a task whom the employer proposed to "dismiss as redundant".
The definition of "being redundant", in section 195(1) of the 1992 Act (and formerly in section 126(6) of the 1975 Act), originally adopted the classic definition which dates back to the Redundancy Payments Act 1965, and survives to this day in the definition of redundancy for the purpose of the right to a redundancy payment, in section 139(1) of the Employment Rights Act 1996. That is, references to "being redundant" were references to -
"(a) the fact that the employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee is or was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee is or was so employed; or
(b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he is or was so employed, have ceased or diminished or...
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