Thanks to Ed McFarlane of Deminos HR for preparing this case summary
Can the obligation to consult over collective redundancies be triggered when an employer makes a provisional decision to close a workplace?
Yes, held the EAT, in E Ivor Hughes Educational Foundation v Morris, dismissing a school's appeal against a protective award of 90 days pay per employee in respect of a failure to consult over the closure of a school.
The school decided in February 2013 that it would have to close at year's end if pupil numbers had not increased by April. Ultimately, the school decided to close in April 2013 and there was never any collective consultation over the decision, in breach of Section 188 of TULR(C)A 1992.
The EAT considered an unresolved question from United States of America v Nolan on the different tests as to what triggers the duty to consult, whether it is an employer proposing a strategic decision that will foreseeably or inevitably lead to redundancies, or when that decision has been made and redundancies are a consequence.
The EAT noted that the decision (February 2013) to close the School, unless numbers increased 'was either a fixed, clear albeit provisional intention to close the School or amounted to a strategic decision on changes compelling the employer to contemplate or plan for collective redundancies. On either analysis, the duty to consult arose on that date'. The EAT did not find it necessary to decide which test applied.
The EAT also rejected a ground of appeal that special circumstances excused a failure to consult because of the need to keep the closure plans secret for fear of confidence in the school being lost. That an employer which had not thought about consultation might, with hindsight, give consideration to the practicalities of consultation is not a special circumstance excusing the duty to consult.