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FACTS UK Coal Mining owned the Ellington Colliery, where it employed 329 employees. The National Union of Mineworkers (NUM) and British Association of Colliery Management (BACM) were recognised in respect of the employees. In January 2005, the colliery managers informed NUM and BACM representatives that the mine would be closed on safety and economic grounds due to flooding. UK Coal began formal consultation with the unions stating that the reasons for the proposed redundancies were special circumstances as a result of being forced to cease production for safety reasons. The closure was, in fact, for economic reasons.
Consultation with the unions took place between 26 January and 22 February, and the first compulsory redundancies took effect on 26 February. The unions then made claims for protective awards for failure to consult.
DECISION The tribunal awarded the maximum protective award of 90 days' pay per employee. It held that although there was no obligation to consult about the reasons for the decision to close the colliery, as UK Coal chose to give information about the reason for the closure, that information should have been true and given in good faith. There were no special circumstances justifying a reduction in the period of consultation.
UK Coal appealed to the Employment Appeal Tribunal (EAT) and the unions cross-appealed, arguing that there is an obligation to consult over the reason for the redundancy and, where that reason is the closure of the workplace, that involves consulting over the reasons for the closure decision.
The EAT held that UK Coal had failed to comply with the duty to consult by giving a deliberately misleading reason for the closure, which affected the nature of the subsequent consultation. UK Coal had not established the special circumstances defence. The EAT said the tribunal was entitled to consider that this was a very serious failure to comply with redundancy consultation requirements. It went on to consider whether UK Coal was, in fact, obliged to consult with the unions over the decision to close the colliery and held that there is an obligation to consult over a decision to close a workplace. In a closure context, dismissals are proposed at
