Triggering the Duty to Consult

E Ivor Hughes Educational Foundation v Morris

This case was about a private school that was forced to close because of declining pupil numbers. Here is how the timeline looked:

February  – Confirmed at a meeting that the school would have to close at the end of the summer term if numbers did not pick up by April.

April  – Teachers were given notice of redundancy.

July  – Terminations took effect.

The problem was that the school had not consulted over the decision to close. It seems there was a lack of awareness about this legal obligation. The law says that where you are proposing to dismiss as redundant 20 or more people at one establishment within a 90-day period, you must collectively consult. If you do not, you could face a protective award bill of 90 days’ pay per employee.

That is what the employees here were awarded, after the tribunal found that it would not have been impracticable to consult. The tribunal also held that the duty to consult arose in February and not when the teachers were given their redundancy notices.

The Employment Appeal Tribunal (EAT) upheld that decision. It was in February that the decision was taken to close the school, and the only thing that would stop that would be a rise in pupil numbers. And it was right to make a 90 days’ protective award. The employer’s argument that it was excused from consulting because it did not want the closure issue to diminish confidence in the school did not get a favourable reaction in the EAT.

The case raises the difficult task employers have in pinpointing when they are actually “proposing to dismiss”. It may not always be obvious. In this case, the decision in February to close the school unless numbers increased was either a fixed, clear (provisional) intention to close the school, or it was a strategic decision on changes compelling the employer to contemplate or plan for collective redundancies. Either way, the duty to consult was triggered then.