The employer in this case fell into the classic trap of burying its head in the sand and failing to consult collectively with employees over the realistic possibility that its business might close and its workforce be made redundant.
The Employment Appeal Tribunal has held that, in a collective redundancy situation, there will be an election of employee representatives where the number of nominees equates to the number of available places, even where there is no ballot.
In Rosenbladt v Oellerking Gebäudereinigungsges mbH [2011] IRLR 51 ECJ, the ECJ held that art.6(1) of the Equal Treatment Framework Directive does not necessarily preclude domestic legislation that permits the use of automatic termination clauses based on the retirement age, or the use of such clauses in collective agreements. The crucial issue is whether or not such measures are objectively justified.
In Malone and others v British Airways Plc [2011] IRLR 32 CA, the Court of Appeal held that the provisions of a collective agreement that purported to set "minimum" cabin crew numbers for different routes and types of aircraft were not incorporated into individual employees' contracts of employment. The provisions amounted to a collective undertaking to operate with minimum numbers so as to protect jobs and guard against excessive workloads, and were binding in honour only.
In Lancaster University v University and College Union [2011] IRLR 4 EAT, the EAT held that the university failed to comply with its statutory obligations to consult collectively on the expiry of fixed-term contracts. The tribunal was also entitled to make a protective award of 60 days' pay.
In Todd v Strain and others [2011] IRLR 11 EAT, the EAT held that the duty to give employee representatives information about a forthcoming transfer applies even where there are no measures being proposed that give rise to a duty to consult the representatives. Informing individual employees rather than representatives did not amount to compliance with the information requirements, but should have led the tribunal to award less than the maximum compensation of 13 weeks' pay.
In Brown v G4 Security (Cheltenham) EAT/0526/09, the EAT imposed a penalty of £20,000 on an employer that failed to comply with its obligations under the Information and Consultation of Employees Regulations 2004. The number of affected employees has limited relevance in determining the gravity of the breach.