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Unison v. Leicestershire County Council (Court of Appeal)


Court of Appeal

The Employment Appeal Tribunal had been right and bound by authority to decline to consider a point of law not advanced before the employment tribunal in the absence of exceptional circumstances and where success on the point on appeal would have required the case to be remitted for further consideration by the tribunal.


The appellant local authority appealed against the decision to make protective awards in respect of two groups of workers and the respondent trade union (U) cross-appealed. The local authority had conducted a job evaluation scheme and implemented the results by dismissing all employees whose terms and conditions of employment were to be changed to their disadvantage and simultaneously offering them re-engagement on new, less favourable terms. U complained to the employment tribunal that the local authority had been in breach of its obligation to consult imposed by the Trade Union and Labour Relations (Consolidation) Act 1992 s.188 and sought a protective award under s.189 of the Act in respect of workers whose jobs had been downgraded (the downgraded group) and those who had lost certain benefits (the enhancement group). The tribunal held that there had been no consultation at all as required by the statute in relation to the downgraded group as the result of a policy decision by the local authority, and that in relation to the enhancement group consultation had not begun "in good time" as required by s.188(1A), and it made protective awards of 90 and 20 days respectively. The Employment Appeal Tribunal dismissed the local authority's appeal save that it reduced the protective award in respect of the enhancement group from 20 days to 10 days. The EAT declined to consider the local authority's submission, not advanced before the tribunal, that "in good time" in s.188(1A) meant in good time before the proposed dismissals took effect and not, as the tribunal had held, speedily after the decision to dismiss had been taken. The local authority submitted that (1) the EAT should have considered its "in good time" point and concluded that it was correct; (2) the tribunal had erred in law, in considering the amount of the protective award in respect of the downgraded group, in declining to take into account meetings and exchanges of information that took place before the proposals to dismiss were made and that had it done so it could not properly or reasonably have concluded that the maximum protective award of 90 days was appropriate. U submitted that there was no basis on which the EAT could properly reduce the protective award in respect of the enhancement group from 20 days to 10 days.

HELD: (1) The EAT should only allow a new point of law to be taken before it in exceptional circumstances, Jones v Governing Body of Burdett Coutts School (1999) ICR 38 applied. Such a point was not to be taken merely because it seemed to be, or was even shown to be, a good one. Nothing had been shown to demonstrate that the instant case was exceptional. The local authority's claim that there was an overriding public interest in deciding the "in good time" point was greatly undermined by U's submission, which was correct, that a decision in the local authority's favour on the construction issue would require the case to be remitted for further consideration by the tribunal, since whether consultation took place in good time was a matter of fact and degree. In the circumstances the EAT was right and bound by authority to decline to allow the fresh construction point to be taken. (2) The tribunal had held in terms that the previous discussions on which the local authority relied were on different issues from those that fell to be canvassed in a s.188 consultation. Any consultation prior to the making of the proposal to dismiss could not be taken into account. The EAT was right that the tribunal had not erred in law in making the maximum award. The appeal on that issue was an appeal to the merits dressed up as law. (3) The EAT had been wrong to find that the tribunal had erred in relation to the enhancement group. On any reasonable approach to the facts it could not be said that the tribunal had misunderstood the evidence or arrived at a perverse conclusion. It had not failed to recognise as mitigation anything that should reasonably have been treated as mitigating the local authority's breach. So far as the EAT concluded otherwise, it was in error. The protective award of 20 days was restored.

Appeal dismissed, cross-appeal allowed.

Counsel for the respondent: John Cavanagh QC, Helen Gower

[2006] IRLR 810 : [2007] BLGR 208

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