REDUNDANCY
Consultation
Special circumstances
Case Carillion Services Ltd and others v Benson and others (2021) Morning Star, November 23, EAT
Facts In January 2018 Carillion, a company with 18,000 employees in the UK, went into liquidation. B and others were dismissed on various dates after January 2018. They claimed protective awards on the basis that Carillion had failed to consult with them before making redundancies. Carilion argued that there were special circumstances which meant that their obligation was to take reasonably practicable steps. The ET upheld the claim. It found that the overall picture was that the company was on a downward path from July 2017 until it went into liquidation. By December 2017 the company knew that it did not have the funds for administration and was at risk of going into compulsory liquidation. The company appealed to the EAT.
Decision 1. The appeal was dismissed.
2. The mere fact that a circumstance had an effect on the ability of an employer to comply with an obligation to consult did not make it “special”. Otherwise, every employer would be able to rely on the “special circumstances” defence by pointing to a factor which made it difficult or impossible for them to comply.
3. Even if dismissal could not be avoided, employers should still consult about mitigating the consequences of those dismissals. The obligation to consult included a requirement to provide information on a wide range of matters, all of which would be highly relevant to an employee facing the distressing prospect of being made redundant, even if the fact of the dismissal itself could not be avoided.