Collective Consulation - 'Special Circumstances' and Mitigating Factors

In Shanahan Engineering v Unite the EAT recently considered the level of protective award payable to 50 employees who had been made redundant with no prior consultation, in breach of s.188 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

The employer was supplying employees to work on a large-scale construction project, building two generators for a customer. On virtually no notice, the customer stipulated that the work should be done on the two generators in sequence rather than concurrently. In practice this meant that half the workforce had to be made redundant within a very short space of time. The employer argued that these were 'special circumstances' within the meaning of s 188(7) TULRCA, meaning that it was not reasonably practicable for it to comply with the requirement to consult. The employment tribunal disagreed and awarded the claimants the maximum 90 days pay each by way of a protective award. The employer appealed.