THE INDUSTRIAL TRIBUNALS
CASE REF: 53/02
APPLICANT: The Amalgamated Transport & General Worker's Union
RESPONDENT: Bombardier Aerospace (Short Brothers PLC)
DECISION
The tribunal hereby unanimously declares that the respondent has failed to comply with Article 216 (1) and (6) of the Employment Rights (Northern Ireland) Order 1996 in:-
(a) failing to specify a period of 90 days or less within which it proposed to make more than 100 redundancies; and
(b) failing to provide to the applicant in writing sufficient particulars of the redundancies it proposed to make to comply with Article 216(6) of the Order.
Appearances:
The applicant union was represented by Mr J Parke, Barrister-at-Law, instructed by Agnew Andress & Higgins Solicitors.
The respondent was represented by Mr P Bloch of the Engineering Employers Federation.
EXTENDED REASONS
- The respondent company manufacture and supply parts for aeroplanes to other aeroplane manufacturers. In the aftermath of the hijackings and bombings in New York and Washington on September 11 2001 steps were taken by the respondent company to consider its position and how the effects of the events of September 11th were likely to impact on its business. The respondent foresaw a reduced requirement for its products and concluded that it would have to make workers redundant to deal with the reduced demand for its products. The respondent notified the Department of Higher and Further Education, Training & Employment as it then was, of its intention to make redundancies as required under Article 221 of the Employment Rights (Northern Ireland) Order 1996 by presentation of a HR1 form to the Department dated 26 September 2001. The following day the respondent handed a copy of the HR1 form to David McMurray, the regional organiser for the applicant union, and to Mr Cairns the applicant union's senior shop steward. The HR1 indicated that of the respondent's 7,346 employees there were 2,000 possible redundancies which it was proposed would take place between 2 January 2002 and 31 January 2003. This HR1 form is attached to this decision and is intended to form part of it. The respondent relied on this HR1 form as the only document given to the appropriate representatives in compliance with Article 216(6) and (7) of the Employment Rights (Northern Ireland) Order 1996. No point was taken in relation to the method by which the HR1 form was delivered to the trade union.
- The respondent maintained because of the nature of the aerospace industry and the long lead in times required and the projected reduced demand for its products that it needed to phase these redundancies over a protracted period. Mr Crawford, the Human Resources Director for Employee Relations in the respondent company, told the tribunal that at the start of the consultation process it was envisaged that there would be three large tranches of dismissals – the first in January 2002, the second in April/May 2002 and the third in August/September 2002. Even at the hearing in June 2002 there seemed to be no definite proposals in relation to the period from October 2002 to the end of January 2003.
- The applicant's representative indicated that the applicant was not seeking protective awards in relation to this matter nor was any point being taken in relation to the actual consultation which it was accepted had subsequently taken place.
- The respondent's representative indicated that the respondent was not relying on Article 216(9) of the Order which refers to special circumstances which render it not reasonably practicable for the employer to comply with the requirements of paragraphs (2), (4) and (6) of that Article.
- The applicant alleged that the respondent failed to comply with Article 216(1) of the Employment Rights Order 1996 by failing to specify a period of 90 days within which it proposed to make more than 100 redundancies and secondly that the respondent had failed to provide in writing to the applicant sufficient particulars of the redundancies which it proposed to make in accordance with Article 216(6) of the Employment Rights (Northern Ireland) Order 1996. The applicant sought the following declarations from the tribunal:
1. The respondent has failed to comply with Article 216(1) of the Employment Rights (NI) Order 1996 by failing to specify a period of 90 days within which it proposed to make more than 100 redundancies.
2. The respondent failed to provide to the applicant in writing sufficient particulars of the redundancies that it proposed to make in accordance with the onus placed on it by Article 216(6) of the Employment Rights (NI) Order 1996.
- In summing up Mr Bloch suggested that the tribunal had two questions to answer:
1. Whether an employer had to specify redundancies would take place within a 90 day period, which he maintained was a matter of law and the construction of Article 216(1) and (2); and
2. Whether there was sufficient information supplied to the union under Article 216(6) which he suggested was a matter of fact for the tribunal.
- Article 216 and 217 read as follows:-
216. – (1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.
(2) The consultation shall begin in good time and in any event –
(a) where the employer is proposing to dismiss 100 or more employees as mentioned in paragraph (1), at least 90 days, and
(b) otherwise, at least 30 days,
before the first of the dismissals takes effect.
(6) For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives –
(a) the reasons for his proposals,
(b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant,
(c) the total number of employees of any such description employed by the employer at the establishment in question,
(d) the proposed method of selecting the employees who may be dismissed,
(e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect,
(f) the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any statutory provision) to employees who may be dismissed.
217.- (1) Where an employer has failed to comply with a requirement of Article 216 or Article 216A, a complaint may be presented to an industrial tribunal on that ground –
(c) in the case of failure relating to representatives of a trade union, by the trade union.
- Mr Bloch suggested that Article 216 made no reference to the 90 day period and therefore there was no duty on the respondent to state a start and end date of that period. He maintained that the tribunal being a creature of statute could only deal with the matters in the legislation. Mr Bloch referred the tribunal to the respondent's request for further particulars and the replies given by the applicant. He suggested that Article 216(1) and (2) must be read together and that there was nothing in Article 216(1) which required the period of 90 days to be specified. He pointed out that if the consultation was successful the entire redundancy might be avoided altogether or at least mitigated and reduced. He suggested that if what the applicant's representative was saying was correct, the employer was bound to dismiss within the 90 day period. He suggested that this was to interpret the duty to consult as a duty that dismissal must take place.
- Mr Bloch pointed out that under Article 221(1) an employer was not required to issue an HR1 form until the end of the 90 day consultation period. However, he accepted that in most redundancies it was practice to issue the HR1 to the Department at the start of the consultation period but he maintained there was no statutory duty on an employer to do so. He also maintained that there was nothing in Article 221(1) to say that the date and time period must be notified.
- Mr Bloch maintained that the HR1 document provided to the union complied with the requirements set out in Article 216(6). He suggested that the reasons for redundancies were given by ticking the box on the form which read reduced demand for products or services. He suggested that the information given at item 5 of the HR1 satisfied the requirement to provide the numbers and descriptions of employees whom it proposed to dismiss as redundant, and the total number of employees of any such description employed by the employer. He suggested that the information given at item 8 of the HR1 in relation to the method of selection for redundancy being "assessment and/or other appropriate criteria" was sufficient to satisfy Article 216(6)(d). He suggested that the information given on the HR1 with regard to the timing of the redundancies as 02.01.02 for the date of the first proposed redundancy and 31.01.03 as the date of the last proposed redundancy was sufficient to comply with Article 216(6)(e) as showing the period over which the dismissals were to take effect. In relation to item 6(6)(f) Mr Bloch accepted that this information was not given. He maintained however that this was information which was well known as a result of a severance agreement agreed with the unions in 1988.
- Mr Bloch maintained that the consultation with regard to the proposed redundancies could take place for much more than the 90 days specified in the legislation and he suggested that there was no maximum time for consultation. He suggested that one could have an employer who was proposing redundancies but was by no means certain as to how many or if any would be required. He pointed out that in this particular case as a result of the events on September 11th and as a result of the longevity of the type of contracts with which the respondent was involved the respondent could foresee a number of stages over this thirteen month period where it considered it would have to reduce the workforce and it was with that in mind that the respondent informed the trade unions of the proposed redundancies.
- Mr Bloch referred the tribunal to the commentary in Harvey in Division E on Redundancy at paragraphs 2571, 2573. He suggested that this confirmed that only broad descriptions needed to be given at the beginning of the consultation process. He suggested that there was no legal obligation to give to the regional trade union official minutia of detail at the start of the consultation. He suggested that the senior shop steward who dealt with the nitty-gritty of the redundancy situation needed detail which was supplied to him. He pointed out that there were 32 formal meetings with the shop stewards and a similar number of informal meetings in relation to these redundancies. He suggested that it was normal to inform the outside official and then to have detailed discussions with the shop stewards.
- In relation to the criteria for redundancy and the reference in the HR1 form to "and/or other appropriate criteria" Mr Bloch pointed out that while assessment by the immediate supervisor had been agreed as the method for redundancy with the trade unions in 1988, the company had four to five years ago removed the layer of supervisors in the management structure and had not agreed with the trade unions the identity of the persons by whom the assessments in redundancy situations were to be carried out. He pointed out that nowhere in Harvey did it say that dismissals must be made within the 90 days and he suggested that the applicant's contention in this regard was absurd. He suggested that if a company was facing a redundancy of 10,000 people the dismissals would all have to be made within a 90 day period or an employer would have to keep entering into 90 day consultation periods.
- Mr Bloch emphasised that Article 216 dealt with proposals to dismiss rather than dismissal itself and he suggested that there was no breach of Articles 216(1) and (2) because there was no provision to be breached. He suggested that this tribunal cannot impose duties on any party which Parliament has not imposed. He accepted that the questions of redeployment or mitigation were important but he maintained that these were not necessarily matters for the start of the consultation procedure but were part of the consultation procedure once it was underway.
- Mr Bloch also commented that it was interesting that the applicant had not called the senior shop steward to give evidence and that the allegation of no proper consultation had been withdrawn and he suggested that this matter of the 90 day period was at best a minor technicality of which in his view there was no breach.
- Mr Parke maintained that Article 216(1) and (2) could only be read one way in order to make sense. He suggested that Article 216(1) put the onus on an employer to consult if it proposed dismissal of twenty people or more at one establishment within 90 days or less. He maintained that the significant wording was within the period of 90 days or less and he suggested that this meant that that is the period during which the dismissals should occur. He suggested that Article 216(2) deals with the length of consultation an employer has to have and he suggested that where 100 or more people are to be dismissed the consultation has to take place at least 90 days before the first of the dismissals takes effect. He maintained that the words "at least 90 days" were very important. In this regard he referred the tribunal to Harvey Division E at paragraph 2404 which read over a period of three months.
- Mr Parke suggested that Mr Bloch was asking the tribunal to construe the 90 days period in 216(1) and the 90 day period in 216(2) as the same. Mr Parke maintained that because the period over which the redundancies are to take place is 90 days or less, not greater than 90 days, it cannot be the same as the period during which the consultation is to take place in Article 216(2) which requires at least 90 days. He suggested the Order would allow for an employer to consult for longer than 90 days in respect of a period during which redundancies are to take place but he maintained that the period during which the redundancies are to take place cannot be greater than 90 days by virtue of Article 216(1).
- Mr Parke referred the tribunal to extracts from a book on Trade Unions, employers and the law by Morris & Deakin at paragraph 5.33 on page 169 in relation to the definition and time limits on consultation. He suggested that this upheld his view that redundancies could only take place within a 90 day period but an employer could consult for longer if it wished but had to allow at least 90 days for consultation.
- Mr Parke also referred the tribunal to Harvey at Division E paragraphs 2421, 2422 and 2423. He also pointed out the difference between the Directive's use of the word "contemplate" as opposed to the narrower "propose" used in the legislation.
- With regard to the respondent's compliance with Article 216(6) Mr Parke maintained that this required a level of particularity to allow the union to engage in meaningful consultation. He suggested that Article 221 requires that the information provided to the Government is only used when an employer is proposing redundancies of 100 or more within a 90 day period. He maintained that the period within which the dismissals had to take place was a period of 90 days or less.
- In relation to the practical impact on the full time official of the union, Mr Parke maintained that without a degree of knowledge and accuracy of dates about the likelihood of people losing their jobs the full time official had difficulty in answering questions from his members about whether an employee was likely to lose his job and if so, should he take a less well paid job elsewhere or whether he should take out a long term loan or what benefits he could obtain and when he needed to apply for these if he was going to be made redundant. He suggested that if a trade union official had to provide such information over a period of thirteen months that this would greatly undermine the quality of the consultation with the employer and relationships with trade union members. He further suggested that if the union did not know the timescale with accuracy it would be difficult to make constructive proposals about what was really necessary for the company and when and if it would be necessary for the company to carry out dismissals.
- With regard to the respondent's compliance with Article 216(6) Mr Parke suggested that just because there was a practice of commencing consultation by copying the HR1 form to the union this did not necessarily mean that an employer had complied with the duty under 216(6) to disclose sufficient detail to be given to the union at the beginning so that consultation could properly begin. He suggested that the bare information disclosed on the HR1 with regard to the reasons for the proposals and the descriptions of employees whom it was proposed to make redundant was too vague. Mr Parke maintained that the information given about the method of selecting the employees for dismissal was clearly deficient because it made no reference to the 1988 severance agreement and the addition of "and/or other appropriate criteria" was entirely vague. He also pointed out that no information was given on the HR1 form as to the method of calculation of the amount of redundancy payments. He suggested that the type of piecemeal feeding of information to the union was not what Article 216 required. He suggested that by not specifying a 90 day period within which the dismissals were to take effect, this left an employer with the opportunity to drive a coach and horses through the legislation. He suggested that it would permit a company to change the reasons for the dismissal and still use the cover of the redundancy notice issued. He further maintained that when an employer made a decision about going to make a proposal for redundancy it must have considered matters such as the disciplines and areas from which it was going to draw the positions to be made redundant and what selection criteria to use. He suggested that if an employer did not have to give an indication of the period during which the redundancies would occur an employer could use one notification to cover an open ended period.
- Both Mr Parke and Mr Bloch referred to the case of E. Green & Son (Castings) Limited & Others –v- Association of Scientific, Technical and Managerial Staff & Another [1984] ICR at 353.
- With regard to the declaration sought by the applicant under Article 216(6) the tribunal found that in this particular case the information given on the HR1 form was insufficient to comply with the respondent's duty under Article 216(6).
- In relation to Article 216(1)(a) the tribunal find that the information given at item 4 on the HR1 form barely satisfies this requirement.
- In relation to Article 216(6)(b) the tribunal concluded that while the type of detail sought by the union in this case in relation to the numbers and descriptions of employees was too detailed nevertheless the tribunal considered that the bare statement at item 5 of the HR1 form that 1,233 manual employees could possibly be made redundant provided insufficient information as to the type of discipline from which it was proposed to make the jobs redundant so as to allow meaningful consultation to take place.
- With regard to Article 216(6)(c) the tribunal considered that the information provided at item 5 on the HR1 adequate.
- In relation to Article 216(6)(d) the respondent referred at item 8 on the HR1 to assessment and/or other appropriate criteria. The assessment scheme was agreed between the respondent and the unions in 1988 but the respondent added "and/or any other appropriate criteria" on the grounds that the 1988 assessment was carried out by supervisors who were subsequently removed as a layer of management, and no scheme for assessing workers for redundancy had been put in its place. In these circumstances the tribunal does not consider that the information given in purported compliance with 216(6)(d) was adequate to begin the consultation.
- In relation to Article 216(6)(e) the tribunal finds that no information was given about the proposed method for carrying out the dismissals and for the reasons given above in relation to compliance with Article 216(1) the tribunal considers that the period given on the HR1 form in alleged compliance with the provision of information with regard to the period over which the dismissals are to take effect was inadequate.
- It was common case that Article 216(6)(f) was not provided at all.
- The tribunal having considered all the evidence and submissions did not accept that the respondent's failure to provide the information required by Article 216(6) was merely technical. The tribunal considered that the lack of information provided by the respondent in response to its obligations under Article 216(6) was such that it was not sufficient to allow consultation to begin in any meaningful way.
- In relation to the arguments addressed to it on the construction of Article 216(1) the tribunal accepted the applicant's argument that the redundancies must be intended to take place within a period of 90 days or less. The tribunal did not find the requirement in Article 216(1) incompatible with the requirement in Article 216(2) that consultation where the employer was proposing to dismiss 100 or more employees must begin at least 90 days before the first of the dismissals takes effect.
- The tribunal considered that the respondent in this case in giving a start date of 1 January 2002 for the proposed dismissals to take place was quite correct. This allowed the basic 90 day consultation to take place after which the proposed dismissals if not reduced or mitigated would commence. However, in indicating that the period over which the dismissals were to take effect was 394 days (02.01.02 to 31.01.03) the respondent did not comply with Article 216(1) which requires that the proposed dismissals should take place within a period of 90 days or less. This effectively allows an employer a period of 180 days or longer if the consultation period is longer, to implement the proposed redundancies of 100 employees or more in consultation with the recognised unions.
- The tribunal considered that if a respondent could specify a longer period than 90 days within which the dismissals were to take place, it would offer a respondent carte blanche to specify any period and effectively deprive a union of its rights to meaningful information and consultation about proposed redundancies. The tribunal therefore accepted that Article 216(1) requires that the proposed dismissals should take place within a period of 90 days or less after the consultation period is over. The tribunal therefore finds that the respondent in specifying a period of 394 days during which the proposed redundancies could occur did not comply with Article 216(1) in that it did not specify a period of 90 days or less within which the dismissals were intended to take place.
- If the respondent's argument was taken to its logical conclusion a respondent could specify a period of say 2 years, 3 years or 5 years over which it envisaged redundancies taking place. The tribunal could not accept that this was either the intention or the actual effect of Article 216(1).
Chairman:
Date and place of hearing: 21, 24 and 25 June 2002, Belfast
Date decision recorded in register and issued to parties:
