Appeal No. EAT/376/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 November 1996

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR D J JENKINS MBE
MISS S M WILSON

THE NATIONAL UNION OF KNITWEAR FOOTWEAR 
AND APPAREL TRADES (KFAT)	APPELLANTS

BETTA SOX LIMITED (IN RECEIVERSHIP)	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR D BROWN
(of Counsel)
Messrs Morrish & Co
Solicitors
First Floor
Oxford House
Oxford Row
Leeds
LS1 3BE	
For the Respondents	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS	

	MR JUSTICE MORISON (PRESIDENT):   This is an appeal from a unanimous decision of an Industrial Tribunal, dismissing an application made by KFAT, a trades union, against Betta Sox Limited. The application was brought under section 189 Trade and Labour Relations (Consolidation) Act 1992. The allegation was that the employer proposed to dismiss a minimum of ten employees within a period of 30 days, but failed to consult with KFAT in accordance with the provisions of section 188.

	The IT1 was prepared by the trade union. It was served upon the employers as far as we know. No response was made by them. So that there is no notice of appearance entered to the originating application.

	The matter was duly set down for hearing. On that occasion KFAT appeared through one of their officers, Mr Markham, at the Industrial Tribunal on the day fixed. The employers made no appearance. Mr Markham, entirely properly, presented to the Industrial Tribunal a statement made by the chairman of Betta Sox Limited to a meeting of creditors on 26th September 1995. The Industrial Tribunal were entitled to have regard to that statement, and to take it into account in considering what the facts were in this case. Their conclusion was that the company was told that it had to cease to trade on 6th September 1995, that the union discovered this for themselves on 7th September 1995, and a formal meeting took place on 8th September 1995 between the union and insolvency practitioners whom the company had retained on 6th September 1995.

	Effectively, the Industrial Tribunal accepted as fact the essential facts set out in the chairman’s statement. Those facts are recorded in paragraph 4 of their decision. It was plain, as it seems to us, from the circumstances in which this matter came before the Industrial Tribunal, that there was failure by Betta Sox to consult in accordance with their statutory obligations as from 7th September 1995. 

	Having arrived at that position,  a declaration of entitlement  to a protective award should have been made, unless the employer was able to show that there were special circumstances which rendered it not reasonably practicable for him to have complied with his statutory obligations. There was no such evidence provided by the employing company in this case. It seems to us that the statement of the chairman provides no proper explanation such as to justify a finding that there were special circumstances. The insolvency of the company as at 7th September 1995 was not of itself a special circumstance in accordance with the decision of the Court of Appeal in Clarks of Hove Ltd v Bakers’ Union [1979] 1 AELR 152. 

	In these circumstances, it seems to us, that the finding by the Industrial Tribunal that there were special circumstances rendering it not reasonably practicable for compliance with the statutory obligation to consult, cannot stand, on the ground that there was no or no proper evidence before them to justify that conclusion.

	At this stage the question arises as to what this court should do with this decision? It seems to us, bearing in mind the non-participation on this appeal of the company, that the proper order to make is for us to make a finding that there has been a breach of the company’s obligations to consult under section 188, and that we should make a declaration accordingly. 

	The question as to the period over which there should have been consultation and the consequences of non-consultation, are not matters with which this Employment Appeal Tribunal should be concerned. We decline, therefore, to accept Mr Brown’s invitation for us to make rulings on those issues. It seems to us that the proper course is for those matters to be considered by the same Industrial Tribunal. If they cannot be reasonably convened to hear the matter, then it should be remitted to a new tribunal for their consideration, but in the first instance an attempt should be made to list this matter back before the same tribunal who arrived at the decision with which we respectfully have disagreed. Accordingly, it seems to us, to that extent the appeal is allowed.

	We make a declaration under section 189(2) exercising the powers of the original tribunal that the respondent company failed to consult about the dismissals of all persons of whom  KFAT were the appropriate representatives.