Appeal No. UKEAT/0066/05/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 June 2005
Judgment delivered on 2 September 2005

Before
HIS HONOUR JUDGE MCMULLEN QC
MR J MALLENDER

MR D WELCH

LEICESTERSHIRE COUNTY COUNCIL	APPELLANT

UNISON	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MISS ELIZABETH SLADE
(One of Her Majesty’s Counsel)
MR M WYATT
(Of Counsel)
Instructed by:
Leicestershire County Council
County Hall
Glenfield
Leicestershire
LE3 8RP	
For the Respondent	MISS HELEN GOWER
(of Counsel)
Instructed by: UNISON
Vivian Avenue 
Nottingham 
NG5 1AF	

SUMMARY

Redundancy: Protective Award

Employment Tribunal correctly applied the judgment in Susie Radin v GMB [2004] ICR 893 in its approach to the calculation of a protective award for one group of workers, erred in respect of a second group and this judgment for this second group would be substituted for a finding of 10 days.  The Tribunal correctly applied a purposive construction to “proposing to dismiss” applying the European Court of Justice Judgment in Junk v Kühnel [2005] IRLR 310.

HIS HONOUR JUDGE MCMULLEN QC

1.	This case is about breach of the duty to consult over mass dismissals of an entire workforce and the correct approach to compensation in such circumstances.  The judgment represents the views of all three members, and is delayed at the request of the parties.  

2.	We will refer to the Claimant as Unison and to Leicestershire County Council as LCC.

Introduction
3.	It is an appeal by LCC, the Respondent in those proceedings, against the judgment of an Employment Tribunal sitting over two days and a day in Chambers at Leicester.  The Regional Chairman Mr J K Macmillan presided with members who were not in any way connected with Leicestershire.  The judgment was registered with reasons on 14 December 2004.  The relevant events took place in 2002-2003 and part of the delay in bringing this case forward was occasioned by the need to have independent members.  Unison was represented there and here by Miss Helen Gower and LCC by Mark Wyatt (both of Counsel) now today led by Miss Elizabeth Slade QC.  Unison claimed breach of the duty to consult over what is a redundancy only in the technical sense to which we will return.  LCC denied the claim.  The Tribunal upheld the complaint that there had been a failure of consultation and made the protective award in respect of one group of workers, the downgraded group, for a period of 90 days and for a second group, the enhancement group, for a period of 20 days.  LCC appealed against both aspects of the judgment.  Directions sending the appeal to a full hearing were given in Chambers by Silber J.

The issues
4.	The Tribunal summarised the background and the issues as follows:

“1.   The trade union Unison, which is recognised by the respondent as representing a substantial number of its employees, complains that, in implementing the results of a job evaluation scheme by the process of dismissing all employees whose terms and conditions of employment were to be changed to their disadvantage and simultaneously offering them re-engagement on the new, less favourable terms, the respondent was in breach of its obligation to consult with them imposed by section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992.  It seeks a protective award in respect of three descriptions of employees: the downgraded group, said to number about 800 who, as a result of the job evaluation exercise were to be placed in a lower grading in the pay structure: the bonus group, said to number about 300, whose bonus payments were adversely affected by the exercise; and the enhancement group, said to number 1550, whose rights to such things as unsocial hours and weekend working supplements and overtime were adversely affected.  Because of the way the scheme was implemented, the downgraded and bonus groups can conveniently be dealt with together and they will be referred to hereafter as the downgraded group.”

The legislation
5.	The legislation relevant to these proceedings is the Trade Union and Labour Relations (Consolidation) Act sections 188 and 189 which provide as follow:

“ TULR(C)A Section 188 provides in material parts as follows:
‘(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.

(1A)  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 subsection (1), at least 90 days, and
(b)  otherwise, at least 30 days,
before the first of the dismissals takes effect.
………

(2) The consultation shall include consultation about ways of-
(a)  avoiding the dismissals,
(b)  reducing the numbers of employees to be dismissed, and
(c)  mitigating the consequences of the dismissals,
and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.

(4)  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 and
(f) …….

If a complaint is well founded a tribunal must make a declaration to that effect and has a discretion also to make a protective award.  The protective award orders the employer to pay remuneration for the protected period (Sec 189(2) and (3)).  Section 189(4) provides:
‘The protected period-
begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and
is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with any requirement of section 188;
but shall not exceed 90 days.’”

6.	The term “redundant” has an expanded meaning by virtue of Section 195(1) which provides as follows:

“[195  Construction of references to dismissal as redundant etc
   (1)  In this Chapter references to dismissal as redundant are references to dismissal for a reason not related to the individual concerned or for a number of reasons all of which are not so related.”

7.	The obligations derive from a new obligation currently found in Council Directive 98/59/EC so far as is relevant provides as follows:
“Article 2
1.  Where an employer is contemplating collective redundancies, he shall begin consultations with the workers’ representatives in good time with a view to reaching an agreement.
2.  These consultations shall, at least cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant.
Member States may provide that the workers’ representatives may call on the services of experts in accordance with national legislation and/or practice.”

8.	By Article 2(3) information must be given to the workers’ representatives “in good time” during the course of consultation.

9.	It is to be noted that the terms of the Directive and of the statute differ slightly.  Because in the statute these measures apply to redundancy in the strict sense and also in the expanded sense, some of the language does not fit easily with the Directive, as the Tribunal in our case pointed out.

10.	By Section 298 of TULR(C)A ““dismissed” … shall be construed in accordance with Part X of the Employment Rights Act 1996”.

11.	Section 95 of the Employment Rights Act 1996 deals with dismissal which includes the situation where “the contract … is terminated by the employer (whether with or without notice)”.

12.	For certain purposes it is important to know what is the “effective date of termination”, as defined by Section 97, which does not cross-refer to Section 95.

The facts
13.	LCC is a local authority which recognises Unison as an independent Trade Union for the purposes of collective bargaining over groups of employees relevant to this case.  The Tribunal set out what it described as the background to the dispute between the parties as follows:
“7.1  In 1997, an agreement known as the Single Status Agreement, applicable to all local authorities, was negotiated at national level.  It required each local authority to review the pay and grading structures of its administrative, professional, technical and clerical grades on the one hand and its manual grades on the other, and produce a single unified pay structure covering both.  This required each job to be evaluated under a recognised job evaluation scheme and placed within the single structure.
7.2  In consequence of this process, some employees were likely to be upgraded, some downgraded – that is placed in a lower salary band than at present – and some would stay the same.  As part of the negotiations, at least at Leicestershire, other elements of the pay package, such as unsocial hours payments, overtime, bonuses and the like were also discussed.  Other than bonus payments, these can conveniently be described collectively as enhancements.  The respondent was anxious to reduce the amount it spent on enhancements, particularly in its Social Services Department.
7.3  Discussions about applying the Single Status Agreement began in 1999.  The original intention was that the new grading structure would be implemented by 1st April 2001.  This proved impossible and the date was changed to the autumn of that year and then to 1st September 2002, this date being announced by the then Leader of the Council at a Council Meeting in March 2002.
7.4  Between July 1999 and May 2002 there were 16 meetings between the management and union sides (seven trade unions were involved) for the purpose of keeping the union side informed of progress on the technically complex task of evaluating some 9000 jobs, the unions having decided not to involve themselves in the actual process of evaluation.  By June 2002 the majority of jobs within the Council (other than school based jobs) had been evaluated and the respondent’s attention therefore turned to a range of related industrial relations issues which would have to be addressed before the outcomes of the evaluation process could be implemented.  These included, the proposed unified grading structure; grading outcomes and pay scale,; phasing in the cost of upgrading staff (about 50% of the workforce would be upgraded); the protection period for those to be downgraded; harmonisation of enhancements; outstanding grading reviews and an appeals process; back-dating; a support programme for down graded staff; and the difficult issue of market premia, that is uplifts to reflect the going market rate for certain posts.”

14.	One of the issues in the case was to determine when the obligation arose as to consultation with Unison.  The Tribunal picked up the account slightly out of chronological order when it held as follows:
“9.3  That the formal political decision to proceed by way of dismissal and re-engagement was taken at a meeting of the Employment Committee on the 12th December 2002 seems clear.  But there is every reason to suppose that in reality the decision had already been taken for all practical purposes.  Mr Shipton told us that by that date the great bulk of the work necessary to carry out the decision had already been done.  The Christmas holidays were not far away, and the letters to employees – some 2650 – were to be sent on the 30th December.  Given the amount of officer time this would have required and the cost involved in preparing the letters, there can have been little if any doubt about what the political decision would be.  The contemporary documents support this view.
9.4  In his report to the Employment Committee of the 18th November, Mr Shipton reported that:
‘The County Council is now considering proposals to implement job evaluation following the failure to reach an agreement with the trade unions.  This will mean that the Council will be required to give employees (who are downgraded or subject to a reduction in enhancement payments) notice terminating their current contract of employment and simultaneously offering a new contract of employment … Since this is a dismissal, individual members of staff would be entitled to pursue unfair dismissal claims ….’
The report was noted.
9.5  In a letter of the 14th November from John Legrys, the Secretary to the union side, the County Solicitor was asked:
‘3  Revocation of existing employment contracts and the issue of new contracts.  It is understood that from discussions at Departmental level preparations are now being made for the issue of these notices in January 2003.  Can you please confirm when the notices are to be issued?
In addition for the avoidance of doubt the Trade Union side will not accept or agree to a notice being place [sic] on the back of a ‘Staff Bulletin’ … Each individual employee must be given formal notice in accordance to [sic] legislation’
9.6  in her reply dated the 25th November, the County Solicitor, Elizabeth McCalla, replied:
‘3.  I can confirm that, where staff are being downgraded, the intention is to issue notices early in the New Year.  Each notice will have to address the employee’s individual circumstances …The timing does, however, depend on discussions taking place at regional level arising out of the failure to agree and final decisions being taken by the Employment Committee.’
9.7  The reference to ‘final’ decisions of the Employment Committee which would affect the ‘timing’ is instructive, as is the absence of any suggestion that, timing apart, nothing is yet certain.  Read together with Mr Legry’s letter to which it is a reply, and the considerable level of activity already underway to implement the strategy, there can be little doubt that, if section 188(1) does require a decision to dismiss to have been taken before the duty to consult arises (which in our judgment it does not) then, for all practical purposes such a decision had taken place.  All that took place on the 12th December was the announcement of a decision already arrived at.  Quite clearly, given the tenor of the County Solicitor’s letter and the background activity, any proposal to dismiss was as much that of the elected members as the officers.  The duty to consult was therefore triggered by mid-November at the latest.
9.8  On the 13th December Mr Shipton wrote to Mr Legrys informing him of the formal decision of the committee of the previous day ‘to proceed with imposing job evaluation’ but not explaining how it was to be done.  On the 20th December a document describing itself as a consultation notice under section 195 of the 1992 Act and purporting to contain the information required by section 188(4) was sent to Nasima Sarang the local Unison Branch Secretary.  The covering letter simply invited her ‘to discuss this notice’.
9.9  In our judgment, the timing of the formal announcement to the union that dismissals were to take place – which was the notice of the 20th December rather than the letter of the 13th December – coming as it did at least a month after the decision, places the respondent in clear breach of their duty under section 188(1) and (2) to consult ‘in good time.’”

15.	Thereafter there was a total failure to consult with Unison in respect of the downgraded group and an offer to consult which was, in the end, not taken up by Unison over the enhancement group.  The former was the result of a policy decision not to consult.  In respect of the latter, had the offer to negotiate been taken up, it would have included matters relevant to Section 188(2) i.e. the consultation obligation.

16.	The Tribunal upheld the claims and therefore went on to decide remedy, holding in respect of the downgraded group as follows:
“14.4  Following the Susie Radin case, it seems to us that the only award which it is appropriate for us to make in respect of the downgraded group (including the bonus group) is of a protected period of 90 days.  There was an intentional and total failure to consult; a delay – which can only have been intentional – in informing the unions of the proposal to dismiss, and only partial compliance with the information requirements in subsection (4).”

17.	As far as the enhancement group was concerned:

“15.1  Although the criticisms of the respondent which we have made in respect of the delay in notifying Unison of the proposal to dismiss and the incompleteness of the disclosure of information apply equally to the enhancement group, the failure to consult does not.  This is recognised by Miss Gower who invites the tribunal to make the protected period only 45 days, half the maximum.

15.2  We have criticised Mr Wyatt’s submissions where they fail to distinguish between negotiations about the job evaluation scheme and about the dismissals, and at first sight, in accepting Miss Gower’s concession we appear to be falling into the same trap.  But this is not the case.  Once the decision was taken to enforce the changes in enhancements by dismissal and re-engagement, compliance with section 188(2) was only possible by a willingness to negotiate about those enhancements with a view to reaching agreement which could have included an alternative method of implementation, thus avoiding the dismissals.

15.3  By far the greater degree of culpability falls upon the trade union side who simply did not pick up the respondent’s invitation to consult.  The only criticism of the respondent, and it is a slight one in the circumstances, is that they could perhaps have repeated the invitation at a somewhat earlier stage.  That they remained sincere in their desire to discuss and reach an agreement is not in question.

15.4  There remain the failure in respect of the late notification of the proposal and the shortcomings in the information provided.  These are relatively minor and in our judgment it would be just and equitable to confine the protected period for the enhancement group to 20 days.”

18.	The Tribunal, in reaching those conclusions. considered the relevant statutory provisions and the judgment of the Court of Appeal in Susie Radin Ltd -v- GMB and Others [2004] IRLR 400.  It adopted a construction of the words “proposing to dismiss” within Section 188(1) and of “in good time” in Section 188(1A), each of which is the subject of a ground of appeal.

LCC’s case
19.	On behalf of LCC it is submitted that the Tribunal erred in respect of three grounds.  First, the Tribunal’s construction of “proposing to dismiss” represents an error of law.  Its construction was as follows:

“9.1  The meaning of this phrase in section 188(1) is not without difficulty, not least, because the equivalent provision in the Directive (article 2) uses the phrase ‘contemplating’ dismissals.  We are of course aware of the need to distinguish between the proposals of officers and the decisions of politicians, without which nothing can happen (see, in a corporate context MSF -v- Refuge Assurance Plc [2002] IRLR 324 EAT) but in our judgment, a proposal must be less than a decision that dismissals are to be made and more than a possibility that they might occur.”

20.	The error was in assuming that “proposing” is the same as “contemplating”.  It was an error to hold that the proposal must be something less than a decision.  On authority, the two words are different: MSF -v- Refuge Assurance Plc [2002] IRLR 324 at para 42 per Lindsay (P), a similar conclusion being reached in R v British Coal Corporation ex parte Vardy [1993] IRLR 104 at pages 116-117.

21.	While the Tribunal was correct to hold that a political decision to proceed was taken on 12 December 2002, it erred in holding that a proposal to dismiss had been made prior to that date by the officers. The paper prepared by Mr Shipton, presented on 18 November 2002, was by way of a recommendation. The Tribunal failed to pay attention to its own finding about the relationship between the paper and the meeting and reached a perverse conclusion in holding that a proposal was being made in mid-November.

22.	The Tribunal further misconstrued the definition of “in good time” since it related to a “dismissal” which has been defined as being expiry of notice of termination where notice is given: Middlesbrough Council v TGWU [2002] IRLR 332 at page 339, para 55.  It was accepted by Miss Slade that she was here arguing a point which had not been argued before the Employment Tribunal and that Unison had taken the point that permission would be required. She relied on the exercise of the EAT’s discretion to allow the point to be taken since it did not open fresh issues of fact and the circumstances are exceptional in that the approach to this construction influenced the Tribunal’s judgment as to the amount of the award “in this high value case”. Miss Slade contends that the judgment of the European Court of Justice in Junk v Kühnel [2005] IRLR 310, relied on by Unison, is of no assistance since the language of the Directive and s188 is different.

23.	As to remedy, it is contended that following the finding by the Tribunal that there was no breach of the consultation requirements in respect of the enhancement group, any protective award should be minimal: Securior Omega Express Ltd v GMB [2004] IRLR 9.  As for the downgraded group, a perverse conclusion was made in the light of the number of meetings which had taken place recorded above:  Miss Slade said “The punitive and deterrent effect of making an award was disproportionate and the award was perversely high, being at the maximum end.” Again, in respect of the enhancement group, it is further argued that the award of 20 days failed to take account of mitigation in the form of the offer to the enhancement group of continued employment with paid protection for three years.  The conduct of the parties indicated that in respect of the enhancement group, there had been substantial attempts to mitigate which should have been taken into account in the award.

Unison’s case
24.	On behalf of Unison, Ms Gower contended that the self direction by the Tribunal as to “proposal to dismiss” was in accordance with MSF v Refuge.  It includes a decision that dismissals “are to be made”. This is a final decision.  Considering the dictionary definition of “propose” as being “to put forward for consideration or as a plan” the Tribunal correctly directed itself.  Construing the statute in accordance with the Directive, it had been authoritatively determined in Junk v Kühnel that the purpose of the Directive is avoidance of the termination of contracts and of the reduction in the number. Given that a decision to dismiss had been made prior to 12 December 2002, as was found by the Tribunal, its conclusion that there was a breach of the statute was correct.

25.	In reality, the Tribunal had made a decision about when a proposal to dismiss had been made, that this was made in advance of the 12 December 2002 meeting and was a question of fact.

26.	As to the second principal ground, it had not been argued at the Employment Tribunal  that “in good time” means what is contended now by LCC.  The principles upon which the EAT operates to allow a point to be taken require exceptional circumstances which do not apply here.

27.	As to remedy, the attack on the judgment of the Tribunal on either group cannot be considered as crossing the threshold of perversity set in Yeboah v Crofton [2002] IRLR 634 of an overwhelming case.  The Tribunal correctly addressed itself to the leading authority Susie Radin Ltd v GMB [2004] IRLR 400. A strict obligation is imposed to consult, and material indicating consultation taking place prior to a proposal is irrelevant.  An award of 90 days was within the wide discretion given to the Employment Tribunal for the downgraded group.  As for the enhancement group, the 20 day period, being a small fraction of the maximum, reflected the Tribunal’s approach to partial compliance by the Respondent and, on this ground, the Respondent’s ground could not satisfy the test in Yeboah v Crofton.

Discussion and conclusions
Proposing to dismiss

28.	We consider that it would be more convenient to deal with the two propositions advanced under this ground in reverse order.  First, it is plain that the Tribunal was well aware of the distinction between officers and politicians within this local authority.  Officers propose and politicians decide: see paragraph 9.1.  There was express delegation by the committee which had the power to make redundancies at its meeting on 16 October 2002.  We, as was the Tribunal, have been taken in detail to the minutes of the committee meeting and to the exchange of correspondence.  The fact that Mr Shipton was acting with express authority of the employer is within the principle enunciated in MSF v Refuge Assurance (above) at paragraph 45 where Lindsay (P) said this:  
“There may be cases where, by delegation from the board, the decision whether the employing company proposes to dismiss has been moved from the board to some other body such as the human resources department but, absent some such delegation and bearing in mind that it is the 'employer' who has to be proposing to dismiss in order to trigger s.188, we are unable to describe any of the tribunal's conclusions we have cited above as in error of law where only the construction of s.188 is in play”.

29.	Applying this approach, the EAT (HHJ Serota QC and members) in Dewhirst Group v GMB [2003] EAT/0486/03 said at paragraph 22:
“The fact that shareholder consent was required did not prevent Board recommendations being treated as proposals that triggered the consultation process. In our opinion there is no need for the person making the proposal to have the power to carry it out. In many cases (if not most) third party consent would turn a proposal into a determination. The purpose of consultation can only be served by permitting representations to be made before that third party, whether it be shareholders, a parent company or a group, as the case may, consent to the proposal”.

30.	In our judgment, the Tribunal’s findings of fact (recorded from its Reasons at paragraph 9.1 to 9.7 cited above) cannot be impugned.  The Tribunal made findings as to the reality of proposing and deciding on the redundancies within this employment relationship and came to the conclusion that not just a proposal but a decision had been made in mid-November 2002.  Given its approach to the relationship between officers and politicians, its finding cannot be challenged because this ground does not meet the threshold for perversity.  There was material upon which it could conclude as it did, and it made no error.

31.	We then turn to what was the first ground of appeal in relation to “proposing to dismiss”.  If we are correct in our view of the Tribunal’s finding of fact, this ground cannot survive the conclusion that there was “a decision to dismiss… for all practical purposes, such a decision had been taken” (Reasons paragraph 9.7).  

32.	However, in deference to the arguments which have been put before us, we will decide this issue, lest we and the Employment Tribunal are wrong.  We accept the argument that the obligation on the Employment Tribunal was to interpret the domestic legislation consistently with the European Directive so as to achieve the result pursued by the Directive provided it can be so construed without distortion: Rhys-Harper v Relaxion Group [2003} ICR 867 at paragraphs 104 to 105 per Lord Hope.  What is criticised under this ground of appeal is the Tribunal’s conclusion that “a proposal must be less than a decision that dismissals are to be made and more than a possibility that they might occur” (Reasons 9.1).  This formulation is almost identical to the formulation in MSF v Refuge (at paragraph 45) sought to be applied by the Employment Tribunal.  It follows from what Lindsay (P) adopted from the judgment of Glidewell LJ in R v British Coal Corporation ex parte Vardy [1993] IRLR 104 that “propose” relates to a state of mind which is more certain and further along the decision making process than the verb “contemplate”.  It was held that “proposed” could not be construed to cover “contemplation”.  Now, however, following the judgment in Junk v Kühnel, the approach to s188 is different.  In that judgment at paragraphs 36-39, the European Court of Justice said as follows:
“36.	The case in which the employer 'is contemplating' collective redundancies and has drawn up a 'project' to that end corresponds to a situation in which no decision has yet been taken. By contrast, the notification to a worker that his or her contract of employment has been terminated is the expression of a decision to sever the employment relationship, and the actual cessation of that relationship on the expiry of the period of notice is no more than the effect of that decision.
37.	Thus, the terms used by the Community legislature indicate that the obligations to consult and to notify arise prior to any decision by the employer to terminate contracts of employment.
38.	Finally, this interpretation is confirmed, in regard to the procedure for consultation of workers' representatives, by the purpose of the Directive, as set out in Article 2(2), which is to avoid terminations of contracts of employment or to reduce the number of such terminations. The achievement of that purpose would be jeopardised if the consultation of workers' representatives were to be subsequent to the employer's decision.
39.	The answer to the first question must therefore be that Articles 2 to 4 of the Directive must be construed as meaning that the event constituting redundancy consists in the declaration by an employer of his intention to terminate the contract of employment”.

33.	It seems to us that what the Court was there saying was that in order to give effect to the purpose of the Directive, which is the avoidance of dismissal for redundancy, consultation should begin before a decision is made as to the implementation of redundancy.  By that, we mean prior to the giving of notice of redundancy and, of course, prior to the taking effect of such notice.  

34.	Prior to Junk -v- Kühnel, it was held that there was ambiguity in the definition of dismissal: see NUT v Avon County Council [1978] ICR 626 at 629 per Phillips (P) EAT 
“[Section 188] is talking about an employer proposing to dismiss, and though “dismiss” may be ambiguous and mean either the giving of a notice, of the effective bringing into effect of that notice by its expiry, it seems to us that in the context it is the former which is in contemplation”.

We are acutely conscious that Miss Slade presented an argument against this proposition when she represented employers in Middlesbrough Borough Council v TGWU [2002] IRLR 332 with conspicuous success, for Judge Peter Clark, referring to the “passing observation of Phillips J in Avon” (paragraph 38) said as follows:
“38	 We have earlier mentioned the passing observation of Phillips J in Avon, that for the purposes of s99 EPA ‘dismiss’ refers to the giving of notice and not its expiry.  That observation was not necessary for the decision in that case and appears to have been made without the benefit of full argument. At all events we are satisfied, and it is common ground between counsel appearing before us, that it is not correct.”

35.	Clearly that would affect our approach to this case, were it not for the judgment in Junk -v- Kühnel.  We consider that effect must be given to the construction of the Directive which aims to avoid dismissal for redundancy and which requires there to be consultation at a stage before decisions on dismissal for redundancy are made.  There is no straining of the language of Section 188 in order to give effect to this purpose by construing “proposing to dismiss” as “proposing to give notice of dismissal”.  We would therefore follow Junk –v- Kühnel, seek to apply it and uphold the Tribunal’s judgment as correct.

36.	Given that correct self direction by the Tribunal, the next question is whether it reached a decision which no Tribunal could have reached on the material.  There was substantial material available to the Tribunal and we cannot conclude that its judgment was perverse.  On the contrary, on this material, its judgment appears to be right.  

Consultation “in good time”
37.	Notwithstanding the substantive arguments which have been addressed to us on this point, we consider that LCC should not be given permission to argue it.  The legal principles to be applied when considering whether a new point should be heard at the EAT were set out in my judgment on behalf of the EAT in Blackpool Fylde and Wyre Society for the Blind UKEAT/0035/05:

“The legal principles
28.  The legal principles to be applied in a case such as this have been approved by the Court of Appeal, most recently in Orthet Limited v Sarah Vince-Cain.  There were two judgments which I handed down on behalf of the Employment Appeal Tribunal and two judgments of the Court of Appeal which Lord Justice Sedley, with Lord Justice Peter Gibson agreeing, handed down refusing permission to appeal.
29.  In our first judgment UKEAT0801_03, we set out the law as we understand it in relation to the hearing of new points at the Employment Appeal Tribunal: 
‘As can be seen from our first preliminary ruling, this is a point which is free of authority. We do not shrink from our duty to determine a point fairly put to us by an Appellant aggrieved at a decision on a matter of law made by an Employment Tribunal.  The principle, however, which requires us to operate when a new point arises is clearly set out in the following authorities, in addition to Kumchyk: Jones v The Governing Body of Burdett Coutts School [1999] ICR 38 CA; Hellyer Brothers Ltd v McCleod [1987] ICR 526 CA; Glennie v Independent Magazines (UK) Limited  [1999] IRLR 719 CA; Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 CA; Divine-Borty CA; Craig EAT; Dimtsu EAT; Derby EAT. Of those, 5 Court of Appeal and 4 EAT authorities dealing with the issue of new points, it is fair to say that they point in one direction, which is that new points may only in exceptional circumstances be raised at the EAT.  The high water mark we suppose is Mensah where a point of law wrongly conceded by counsel could not be unpicked on appeal to the EAT however unfair that result might appear.  Those then are the principles which inform our approach to the submissions.’

30.  The Court of Appeal of appeal approved of that approach: see 24 June 2004, para 12  
31.  It again approved that approach when the matter came back before it: see 25 September 2004, para 20. 
32.  In the judgment of the Court of Appeal, Robert Walker LJ in Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 paragraphs 19, 20 and 29, it is clear that a new point of law may not be taken simply because it is arguably or even demonstrably correct by the time it reaches appeal.”

38.	The high value of the claim and the fact that it involves construction of a domestic statute against a European Directive are not, in themselves, exceptional circumstances.  It was never argued below that the words “in good time” fix a time with reference to the contemplated redundancy date.  There is plainly a public interest in the finality of litigation, particularly this litigation, which is ongoing three years after the relevant events.  Unison has been deprived of a judgment by the Employment Tribunal on this issue and thus is facing the point at the EAT for the first time.  It is not simply a construction point: issues of fact would need to be determined and the Tribunal would be required to address the construction contended for in the light of its findings.  Parties were represented below by experienced Counsel.  The litigation had taken a long time procedurally to set up.  The issues were clear.  Considerable leeway is given in Employment Tribunals, and at the EAT, where parties appear unrepresented and occasionally new points may be taken where they can be disposed of conveniently and without further reference to the Employment Tribunal.  That is not the position here.  As is clear from the authorities cited above, only truly exceptional points may be advanced anew in the EAT.  That the claim involves a high cost to this particular employer is not a good reason.  That it involves a public sector employer is irrelevant.  We would be much assisted by the view of this distinguished Employment Tribunal on this matter, and findings to match it, assisted by submissions of both Counsel, before descending upon an appeal against its judgment.  For all these reasons, we will decline to give permission for the point to be argued. 

Remedy
39.	The Tribunal made firm findings about the total failure to comply with the statute in respect of the downgraded group.  What is contended for by Miss Slade on behalf of LCC is that the period should begin at 90 days, be reduced by 10 days and that figure of 80 days be reduced by a third, giving a figure of 53 days rather than 90.  In respect of the enhancement group, there should be a similar discount of 10 days, substituting 10 for 20.  

40.	The principles for assessing the length of a protective award was set out in Susie Radin v GMB [2004] IRLR 400 at paragraphs 26, 45 and 46 where Peter Gibson LJ said as follows:
“26.	  Whilst that sanction results in money being paid to the employees affected in the form of remuneration paid to them, there is nothing in the statutory provisions to link the length of the protected period to any loss in fact suffered by all or any of the employees.  Their dismissals may not take effect at the same date.  Their individual circumstances, for example, whether another job immediately became available, may well differ.  The required focus is not on compensating the employees but on the default of the employer and its seriousness.  It is that seriousness which governs what is just and equitable in all the circumstances.  I find it impossible to see how compensation for loss could be implied into the statutory provisions, given that the award, if one is to be made, is across the board for all employees falling within a particular description, as distinct from an individual award to each employee.

45.  I suggest that ETs, in deciding in the exercise of their discretion whether to make a protective award and for what period, should have the following matters in mind: 
(1) The purpose of the award is to provide a sanction for breach by the employer of the obligations in s. 188: it is not to compensate the employees for loss which they have suffered in consequence of the breach.
(2) The ET have a wide discretion to do what is just and equitable in all the circumstances, but the focus should be on the seriousness of the employer's default.
(3) The default may vary in seriousness from the technical to a complete failure to provide any of the required information and to consult.
(4) The deliberateness of the failure may be relevant, as may the availability to the employer of legal advice about his obligations under s. 188.
(5) How the ET assesses the length of the protected period is a matter for the ET, but a proper approach in a case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the ET consider appropriate.
46.		In my judgment in guiding themselves as they did in para. 40 of their decision the ET, for the reasons I have given, did not misdirect themselves in law. On the facts of this case I readily acknowledge that another ET might have taken a less serious view of the default given the relatively generous notice period. However, I find it impossible to say that the decision to make a protective award of the maximum period was perverse, given the findings that no consultation at all took place, although the Company had been advised by its solicitor of the need for consultation, that on one occasion when consultation might have taken place, the Company was merely going through the motions of what it considered to be consultation – a far cry from meaningful consultation with a view to reaching an agreement – and that none of the information required to be supplied in writing was supplied”.

41.	The Tribunal clearly had in mind this guidance.  We accept the submission that any “consultation” prior to the making of the proposal to dismiss cannot be taken into account.  The Tribunal has a discretion as to the amount of time to be awarded within the protected period and begins with the maximum and works down, if appropriate.  The fact that the employer here achieved partial compliance with the requirement to provide information does not mean that there should be an automatic reduction.  The Tribunal had in mind that provision.  It is a separate provision from the duty to consult, although it arises with a view to achieving meaningful consultation.  In other words, without information consultation will not be effective.  As to the downgraded group, the Tribunal was entitled to be condign in its criticisms, for this was a case of deliberate refusal, intentionally carried out.  We see no error of law so as to criticise the Tribunal for being manifestly excessive or wrong in principle which is the test we are asked to apply.  

42.	Our view, however, of the approach of the Tribunal to the enhancement group is different.  For this group, it is accepted that the Tribunal’s criticisms of LCC for its delay in notifying Unison of the proposals and of the incompleteness of its disclosure of information also apply.  We can understand how the period of 20 days was fixed by the Employment Tribunal: it roughly corresponds to the delay in notifying Unison of the proposal to dismiss.  The evidence of the Respondent’s approach to the enhancement group after 12 December 2002 is impressive.  It did not seek simply to consult, but to negotiate, which is a stronger commitment.  The union was itself to blame in its failure to respond effectively.  In its conclusion at paragraph 15.2, second sentence (cited above), the Tribunal seems to have lost sight of its earlier finding at paragraph 12.1 and 12.3:
“12.	  The enhancement group

12.1  The meeting proposed for the 9th January did not take place, nor did any other meeting to discuss the question of enhancements during the 90 day period. Had such a meeting taken place, given the respondent's express desire to resolve this part of the dispute, there is little reason to doubt, and Miss Gower does not submit otherwise, that it would have been held with a view to reaching agreement about ways of avoiding the dismissals (as required by subsection 2(a») and reducing the number of employees to be dismissed (subsection 2(b»). Miss Gower does however submit that there would have been no attempt to comply with 2(c), mitigating the consequences of the dismissals because pay' protection had been ruled out from further discussions.
12.2  ………
12.3  It is important to understand why this offer of negotiations on the enhancements package, which would inevitably have addressed section 188(2) issues was not followed up”.

43.	That, in our judgment, corresponds to the kind of mitigating circumstance which Peter Gibson LJ had in mind in paragraph 45 of Susie Radin.  This was not a case, at least in respect of the enhancement group, of a total failure to consult, but simply of lateness.  The primary finding of the Employment Tribunal is that there would have been full negotiations with the trade union to resolve the issue which would have included all matters under section 188(2), substantially the prospect of avoiding the dismissals as a way of achieving change.  Failure to consider that as mitigation, is an error, with respect.  

44.	Having heard from Counsel as to the appropriate disposal, it is agreed that the matter will not be remitted and our judgment of 10 days’ protective award should be substituted.  

45.	We would like to thank all three Counsel for their considerable help in this case.