UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area)

EAT: Elias J (President), Ms K Bilgan and Mr M Worthington: 28 September 2007

In January 2005 a coal mine operated by the appellant employers was badly affected by an inrush of water at the coal face. They notified the Department for Trade and Industry that the economic and risk case for developing a new face was not satisfactory, that they would not restart the damaged face for safety reasons and that they would be closing the mine. A press release was issued stating that the company had been forced to cease production for safety reasons. The employees were dismissed for redundancy and, on complaints by the unions that the employers had failed to comply with the requirements of section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 to consult 90 days before the proposed redundancies, an employment tribunal rejected the employers’ contention that there were special circumstances rendering consultation not reasonably practicable within the meaning of section 188(7) and found that there was no credible evidence that the reason for the redundancies was safety, that the real reason was economic and the employers had failed to disclose the reason for their proposals in breach of section 188(4)(a). The tribunal held that, although there was no duty to consult over the decision to close the mine, there had been no consultation about matters relating to the redundancies as required by section 188(2) and made maximum protective awards.

The employers appealed; and the union cross-appealed, contending that the obligation to consult over the redundancies, properly construed in compliance in particular with article 2 of Council Directive 98/59/EC, extended to the reason for the decision to close the mine.

The Employment Appeal Tribunal held:
(1) Section 188(4)(a) of the Trade Union and Labour Relations (Consolidation) Act 1992 required the employers to give reasons for their proposal to make redundancies for the purposes of consultation, and, by giving a false reason for the closure of the mine, they failed to comply with that obligation. Moreover, that action thereafter affected the nature of the consultation that did take place. Whether or not the problems were such that they could come within the meaning of “special circumstances” in section 188(7), in order to rely on that defence the situation had to be exceptional, and the employers had not produced the detailed evidence properly required by the tribunal. Further, the tribunal were entitled to find that, in any event, the employers had not taken such steps as were reasonably practicable towards compliance with the consultation requirements. In making the maximum award, the tribunal did not err in taking a grave view of the deliberate deception perpetrated by the employers.
(2) The obligation imposed on an employer by article 2(2) of Directive 98/59 required consultation over a decision to close a plant at the point when loss of jobs was envisaged, and, although the obligation to consult once an employer was “proposing to dismiss” in section 188(1) could not be read as the equivalent of consultation when an employer was “contemplating” redundancies as provided in article 2(1), in a closure context where dismissals would inevitably result from the closure, dismissals were “proposed” at the point when the closure was proposed. While strictly under section 188(2) it was the proposed dismissals that were the subject of consultation, where closure and dismissals were inextricably interlinked, which would be in all but a very exceptional case, a duty to consult over the reasons for the closure would arise.

The appeal was dismissed; and the cross-appeal was allowed.

Appearances: David Reade QC (Freshfields Brukhaus Deringer) for the employers; Simon Dyer and Schona Jolly (Browell Smith & Co, Newcastle upon Tyne) for the National Union of Miners; Seamus Sweeney (Watson Burton, Newcastle upon Tyne) for the British Association of Colliery Management.