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Collective redundancy consultation: "proposed" dismissals and appropriate representatives

The EAT has held that a tribunal erred in concluding that members of a pre-existing consultative body were "appropriate representatives" for the purposes of collective redundancy consultation. The tribunal failed adequately to consider whether the representatives had authority from the affected employees to be consulted about the proposed dismissals. In particular, the tribunal did not have regard to the purposes of the body; did not address the fact that some of the members of the body were co-opted rather than elected; and surprisingly stated that it was irrelevant that the body was expressly "non-negotiating". The EAT remitted the matter to the tribunal for further fact-finding and consideration.

However, the EAT upheld the tribunal's decision that the wording of TULRCA as to when the collective consultation duty is triggered (when the employer "is proposing to dismiss" 20 or more employees as redundant) must be given its natural meaning. This was despite that fact that the Collective Redundancies Directive states that consultation obligations are triggered when redundancies are "contemplated" rather than "proposed". 

The tribunal was entitled to follow the EAT's decision in MSF v Refuge Assurance plc that to read "proposing" in line with "contemplating" would distort the meaning of the domestic legislation. (Kelly and another v Hesley Group UKEAT/0339/12.) 

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