It has been a busy month in terms of collective consultation disputes, serving to underline how tricky these obligations can sometimes be. First up is the reminder, in Shields Automotive Ltd v (1) Langdon (2) Brolly and AEI Cables Ltd v (1) GMB (2) Unite (3) Individual Claimants, that awards for breaches of the collective consultation obligations are intended to be punitive and not to compensate the employee for any loss or damage suffered. However, in AEI Cables the Employment Appeal Tribunal noted that failure to consult was because the Company would have otherwise unlawfully traded while insolvent yet only reduced the protective award from 90 days to 60 days. Given that the employer was between a rock and a hard place, this might be viewed as rather harshly ‘punitive’; although the Court did note that the employer could and should have ensured that at least some consultation took place in the limited time available. In Shields (an award for breach of the TUPE collective consultation duties) the ‘technical’ breaches included the scheduling of a meeting to vote in employee representatives at a time when an employee could not attend, and the unilateral selection of one employee representative over another where there was a tied vote.
The last collective consultation case this month is I Lab Facilities Ltd v Metcalfe and others, in which a distinct part of a film business (‘rushes’ work, which is one of the first stages of film production) was sold off leaving behind the post production part of the business, which was closed down. The complaint of breach of the TUPE consultation obligations failed since the ‘post production’ staff were not ‘affected employees’ and had been dismissed because of the closure of the business not because of the transfer. Of course, we should not forget that non transferring employees can still be ‘affected employees’; here, however, their part of the business was entirely distinct from the part sold off.