EAT Considers Whether Pre-existing Consultative Body Could be Consulted over Redundancies

The EAT has held that a tribunal was wrong to conclude that a joint consultative committee was an “appropriate representative” which could be consulted about collective redundancies. 

In Kelly v Hesley Group Ltd, the employer sought to agree changes to terms and conditions of employment. Thirty two employees refused to agree the changes and the employer entered into collective consultation over its proposal to terminate their employment and offer them re-engagement on the new terms.  As it did not recognise a trade union, it decided to consult with the employee members of an existing joint consultative committee (“JCC”). 

Where an employer chooses to consult pre-existing representatives, they must have been appointed or elected by the affected employees and have authority from them to receive information and be consulted about the proposed dismissals. The JCC had been set up as an advisory body to communicate staff views to management and vice versa.  Its constitution expressly stated that it did not have a negotiating role.  In addition, whilst it provided for nomination and election of members, it also allowed for co-option of members “to ensure everyone has their voice heard”. 

Two of the employee representatives brought a tribunal claim arguing that the JCC was not an appropriate representative. The employment tribunal dismissed their claim but its decision was overturned on appeal.

The EAT held that the tribunal had failed adequately to consider whether the representatives had authority from the affected employees to be consulted about the proposed dismissals.  Their authority must be determined generally, but with particular regard to the purposes for and method by which the members were appointed or elected. The tribunal had failed to have regard to the purposes of the JCC (to communicate staff views to management and vice versa) and in the absence of any finding about what the employees knew of what the JCC did in practice, it could not be clear whether the representatives had the necessary authority to be consulted about the dismissals.  In relation to the co-opted members, the tribunal should also have considered who effected the co-option and how, when deciding whether the JCC had the necessary authority. 

The tribunal had also been wrong to ignore the fact that the JCC’s constitution expressly stated that it did not have a negotiating role. The legislation required the tribunal to consider whether the JCC constitution gave it authority not just to receive information but also to consult with a view to reaching agreement. The tribunal’s view that the JCC’s lack of a negotiating function was irrelevant was “problematic” and it should have considered whether this precluded it from consulting with a view to reaching agreement.

There is very little guidance on when a pre-existing body will be an “appropriate representative” for collective consultation purposes and how an employer can demonstrate that such a body has authority to be consulted.  The decision in this case therefore provides a useful insight into how this question should be addressed. The matter will now be reconsidered by the employment tribunal and its decision will be awaited with interest.  It would be surprising if it were to find that a body which has no authority to negotiate can be said to have authority to consult with a view to reaching agreement.

In addition to demonstrating that representatives have authority, it is also necessary to show they have been appointed or elected by the affected employees.  No issue was taken in this case about whether the JCC members had been appointed or elected by the affected employees, as opposed to other employees. Further guidance would be helpful on this issue as it will rarely be the case that all employees affected by redundancies will have been involved in the appointment or election of the members of a standing body of representatives.