Appeal No.	 EAT/0486/03/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	            On 19 August 2003
Judgement delivered on 7 October 2003

Before
HIS HONOUR JUDGE D SEROTA QC
MS S R CORBY
MRS J M MATTHIAS

DEWHIRST GROUP	APPELLANT

GMB TRADE UNION	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A SENDALL
(of Counsel)
Instructed by:
Messrs Addleshaw Goddard
Solicitors
100 Barbirolli Square
Manchester M2 3AB	
For the Respondent	MR E LEGARD
(of Counsel)
Instructed by:
Messrs Thompsons
Solicitors
St Nicholas Building
St Nicholas Street
Newcastle upon Tyne
NE1 1TH	

HIS HONOUR JUDGE D SEROTA QC

Introduction
1	This is an appeal from an Employment Tribunal sitting in Newcastle (R S Drake Esq, Chairman) promulgated on 24 April 2003.  The Tribunal found that the Applicant’s claim for a protective award was well founded.  The Tribunal made the award in respect of Dewhirst employees engaged at their Leechmere site and dismissed on the grounds of redundancy by notices given on 15 March 2002, with a proviso excluding such employees who were subsequently re-engaged or reinstated.  The protective award was made for the protected period which was defined as being fifteen days.

2	The Respondent to the application is named as “Dewhirst Group”, but it is accepted by all parties that the employer was in fact Dewhirst Ladieswear Ltd, a company within the Group.

3	GMB cross-appeals on the basis that there is an obvious clerical error in the Decision.  The protective award was made in respect of employees made redundant “by notices given on 15 March 2002 …….”  It seemed clear that the Tribunal should have made the award in respect of all employees dismissed on the grounds of redundancy:

“by notices given on or after 15 March 2002”

The Tribunal thereby excluded some 277 employees.  Mr Sendall, who appeared on behalf of Dewhirst, with his customary fairness and realism conceded the point at once.  Accordingly, we allow the cross-appeal and need say no more about it.

Statutory provisions relating to protective awards
4	The relevant provisions are to be found in the The Trade Union and Labour Relations (Consolidation) Act 1992, known by its acronym of “TULRCA”.  Section 188 provides as follows:
“(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.  
(1A) The consultation shall begin in good time and in any event -
(a) where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days ……
before the first of the dismissals takes effect.”
Section 188 (1B) provides where an employer recognises an independent trade union as representing the employees, the appropriate representatives will be representatives of the trade union.  There is no dispute that in this case representatives of GMB are the “appropriate representatives”.  

5	Section 188 (2) provides:
“The consultation shall include consultation about ways of -
(a) avoiding the dismissals,
(b) reducing the numbers of employees to be dismissed, and
(c) mitigating the consequences of the dismissals,
and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.”

6	Section 189 (1), permits GMB, in the circumstances of this case, to make application  for a protective award to the Employment Tribunal:

“Where an employer has failed to comply with a requirement of section 188 ….. “
(2) If the Tribunal finds the complaint well-founded; it is required to make a declaration to that effect and may also make a protective award”
[Section 189(2)]
A protective award is an award in respect of one or more descriptions of employees:
“ (a) who have been dismissed as redundant … and
 (b) in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188, 
ordering the employer to pay remuneration for the protected period.”

Section 189(4) reads as follows:
“The protected period  -
(a) begins with the date on which the first of the dismissals to which the complain relates takes effect, or the date of the award, whichever is the earlier, and
(b) is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with any requirement of section 188;
but shall not exceed 90 days.”

7	The crucial question so far as this appeal is concerned, concerns the meaning and the application of the phrase “where an employer is proposing to dismiss as redundant ……” to be found in section 188 (1), which we have set out in full.  

The factual background
8	We now set out the relevant factual background.  We are indebted to the Employment Tribunal for their full and careful recital of facts in their award.  A summary of the facts is extracted from the award.

9	Dewhirst Ladieswear Ltd (which we have referred to as “Dewhirst”) was at the material time a large scale manufacturer of ladies wear and knitwear.  It had manufacturing facilities at Leechmere, and Ashington, as well as at South Wales.  Some 600 staff were employed at Ashington and 400 at Leechmere.  Dewhirst also had manufacturing capacity in Morocco.  Costs in Morocco were significantly cheaper than those in the UK.  

10	In 2001 Dewhirst was facing extremely stiff competition in its market place and was threatened with a substantial loss of business by reason of the demands of its customers (in particular Marks and Spencer) that it reduce its prices.  It could only do so by cutting costs.  Prior to the closure of the Leechmere site, Dewhirst had shut other operations in the UK.  It soon became apparent to Dewhirst that costs could only be cut so far in the UK, and Dewhirst executives, by 2001, had begun to consider the possibility of closing the Leechmere site, and transferring its manufacturing capacity to Morocco.  

11	Dewhirst’s budget, published in late November 2001, had included provision for the costs of closing Leechmere in the financial year 2001/2002.  Similar provisions had been made in earlier budgets, however, the Employment Tribunal was satisfied that closure in the financial year 2001/2002 was far more likely than in previous years.  

12	25 January 2002 was a crucial date so far as concerned the Employment Tribunal.  By this date attempts to negotiate with Marks and Spencer had proved to be unsuccessful and executives had had a number of discussions as to the way forward.  The Employment Tribunal had this to say at paragraph 3.6:
“By 25 January 2002 according to Mr King in paragraph 7 of his statement we quote: “The only option (our emphasis) seemed to be to transfer our Leechmere products to our Moroccan site at the end of the Spring season by mid May 2002.  This would turn the previously forecasted loss into profit and still leave us with a manufacturing site in UK namely Ashington.”  He goes on to say that in the following two weeks this option had to be examined and agreed by the Group.  He was the managing director of this particular location and by this stage a budget had been set, thus demonstrating at least finality of conclusion …..”

13	Dewhirst held further internal discussions after 25 January.  A further review meeting was undertaken at senior level on 6 February in London, followed by a meeting on site on 7 February attended by directors of Dewhirst Group and the senior executives.  The Employment Tribunal found (see paragraph 3.9):
“Therefore at least by that stage on 7 February if not earlier not only was closure envisaged but the reasons for it were well known within the respondent’s management and that therefore dismissals would be inevitable.  It was at that point in time that the respondents invited …… the GMB, to consultations.”

The matter is not dealt with in the Decision of the Employment Tribunal, but Mr Sendall conceded before us that the Board of Dewhirst (as opposed to Dewhirst Group) knew by 25 January of the proposal that was put to Dewhirst Group on 6 and 7 February.  

14	We have noted that GMB was notified of 7 February and invited to commence consultation negotiations the following day.  The GMB has very properly accepted that the negotiations were conducted properly (subject to the reservation that consultations could not be meaningful in the sense that the decision to close Leechmere, with consequent redundancies, had already been taken).  The consultations led to an agreement with GMB on a redundancy package and in a reduction in the number of redundancies.  Although negotiations were extensive it did not take ninety days for agreement to be arrived at.  The agreement was dated 11 March 2002, and on that date a workplace ballot voted 287 in favour of the package, with three against.  Redundancy notices were first set out on 15 March 2002.  The site was closed on 10 May 2002, and redundancies took effect on that date; 10 May is more than ninety days from the date collective consultation commenced.  

The Decision of the Employment Tribunal
15	The Employment Tribunal directed itself by reference to two decisions of the ET.  Middlesborough Borough Council -v- TGWU [2002] IRLR 332 (H H Judge Peter Clark) and MSF -v- Refuge Assurance PLC [2002] IRLR 325 (Lindsay J).  In paragraph 5 of its Decision, the Employment Tribunal determined that the date when Dewhirst was “proposing to dismiss as redundant” its employees at Leechmere was the date in January.  Mr Legard, who appeared on behalf of GMB, conceded that this refers to 25 January.  The Employment Tribunal, therefore, determined that the “trigger” date for commencing the consultation process was 25 January.

16	We need to set out paragraphs 6 and 7 of the Employment Tribunal Decision:
“6  We have to say somewhat reluctantly given the difficulties which we appreciate that the respondents faced that the inevitable conclusion that that part of subsection (2) had not been adequately fulfilled, but more particularly consultation had not begun before the point in time when it would be possible to meaningfully undertake consultation to avoid dismissals.  Closure is bound to involve dismissals in the circumstances of the findings of fact in this case.
7    It therefore follows that we have to conclude that the requirements of section 188 have not been fully complied with despite what we must say were valiant efforts to comply with them.  Had not the inevitability of closure on economic grounds been arrived at in collective minds of the respondents in January then the situation might have been somewhat different.  Once that conclusion was reached it is virtually impossible, if not having undertaken consultation with the Union before that time, to have any meaningful consultation which would have the effect of complying with the requirements of subsection (2)(a), the requirement of avoiding dismissals.”

17	The Employment Tribunal went on to find that Dewhirst was in breach of section 188 in two respects.  Firstly, it had failed to consult with the GMB within “good time” of the date when it was “proposing to dismiss as redundant” its employees at the Leechmere site, and secondly, it had failed to conduct meaningful consultations under section 188(2)(a) in relation to avoiding the dismissals.  

18	In paragraph 9 the Employment Tribunal rejected what it said was a submission by the Applicant that the protective award should run from a point in time “long before consultation was first commenced ….” and stated that it preferred Dewhirst’s approach, that is that the period should start with the latest date when it could be said closure was concluded as inevitable, which the Tribunal found to be 25 January 2002, “some fifteen days before announcement and commencement of consultation”.  It is to be noted that the Employment Tribunal held that the protected period began on 25 January, rather the date on which the first of the dismissals took effect, and secondly, that although there was a fifteen day period between 25 January and 7 February, there was no explanation as to why the protected period was found to be fifteen days.

Authorities on the phrase “where an employer is proposing to dismiss as redundant ….”
19	UK law on collective redundancies was in place before the EC Collective Redundancies Directive (75/129) (subsequently replaced by Directive 98/59).  The Directive provided that the relevant trigger date for commencement of consultation was when the employer “contemplates” redundancy.  There are a number of decisions in UK Courts to the effect that UK law does not in fact transcribe the Directive, and that the term “proposing” in section 188(1) of TULCRA imposes less stringent requirements on employers than would be imposed by the term “contemplate” redundancy - the term used in the Directive.  In this regard we refer to MSF - v - Refuge Assurance, in which the EAT cited from R -v - British Coal Corporation  Ex Parte Vardy [1993] IRLR 104, and Griffin -v- South West Water Services [1995] IRLR 15.  The EAT had this to say at paragraph 42:
“We respectfully adopt Glidewell LJ’s view in Vardy, supra, that ‘proposes’ relates to a state of mind which is much more certain and further along the decision-making process than the verb ‘contemplate’.”
We also quote from paragraph 44:
“… we are left with the task of seeing whether employment tribunal erred in law, that question to be approached on the basis that, on a straightforward construction of the language of s.188, a ‘proposal’ to dismiss within it emerges, if at all, at a stage later than the ‘contemplation’ of redundancies.  Of the meanings of ‘to propose’ given by the Shorter Oxford English Dictionary, perhaps the most fitting in context is ‘to lay before another or others as something which one offers to do or wishes to be done.’ ”

20	We have noted from Harvey that when the European Commission took the UK to the ECJ for failing to enact the Directive in other respects, the Government took the opportunity to make the minimum changes necessary and at the same time to reduce obligations previously placed on employers to the bare minimum required by the Directive.  Among the changes enacted by Parliament was that the obligation to “consult” was to arise “in good time”, which appears to be a less stringent requirement than the original obligation which was that “consultation must begin at the earliest opportunity ……….” (the original section 188(2) of TULCRA).

Submissions in relation to the trigger date
21	Mr Sendall made two initial submissions.  Firstly, he submitted that the Employment Tribunal had misconstrued the phrase “where an employer is proposing to dismiss as redundant” and should have held that the relevant trigger date was 7 February, when the Dewhirst Group made the proposal to close the Leechmere site.  Secondly, he submitted that a proposal within the meaning of section 188 was required to be a proposal of the person with the power to carry it through.  A proposal made by someone without the ability to carry it through, could not, he submitted, be a proposal within the meaning of section 188(1).  

22	As Lindsay J pointed out in MSF -v- Refuge Assurance, a distinction needs to be drawn between the employer at a management level formulating a plan and the approval of the plan of the Board of Directors.  In cases of major decisions an employer can only make a proposal to its appropriate organ, such as a Board of Directors.  We do not consider how an employer can be found to have made a proposal for closure of a major plant unless its Board of Directors approves the proposal.  It cannot be the case that simply because senior managers recommend a particular course of conduct, the employer is bound, before Board consideration, to commence consultation.  There are, however, bound to be many cases in which the employer has delegated power to make proposals.  Be that as it may, in this case, as Mr Sendall has conceded, the Board of Dewhirst was a party to the recommendation to the Group on 25 January 2002 that entailed closure of Leechmere, with consequent redundancies.  We reject the submission that the fact that the proposal required consent of the Group meant that there could be no proposal within the meaning of section 188.  It is clear from the meaning given to the verb “to propose” in MSF -v- Refuge that this cannot be correct and we also note that in that case proposals required shareholder consent.  The fact that shareholder consent was required did not prevent Board recommendations being treated as proposals that triggered the consultation process.  In our opinion there is no need for the person making the proposal to have the power to carry it out.  In many cases (if not most) third party consent would turn a proposal into a determination.  The purpose of consultation can only be served by permitting representations to be made before that third party, whether it be shareholders, a parent company or a group, as the case may, consent to the proposal.

23	Mr Sendall went on to submit that a proposal to close a site must be distinguished from the consequences of that proposal.  Accordingly, Mr Sendall submitted, that a proposal to close the Leechmere site, even though it would necessarily entail mass redundancies, did not amount to a proposal to “dismiss as redundant”.  We are unable to accept this submission.  The Employment Tribunal, in our view, was correct in its finding on the facts that closure of the Leechmere site was bound to involve dismissals, and accordingly, the proposal to close the site should properly be regarded as a proposal to dismiss employees as redundant.  The approach taken in MSF -v- Refuge Assurance is a commonsense approach.  If an employer proposes to close a plant and the closure would in all likelihood (as in the present case) lead to redundancy, then he can properly be said to be proposing to make staff redundant when he proposes to close the site, with the inevitable consequences of large scale redundancies.

Submissions on breaches of section 188 by Dewhirst
24	As we have noted, the Employment Tribunal found two breaches on the part of Dewhirst to have been proved.  Firstly, Dewhirst had failed to consult in good time after the “trigger” of the proposal.  Subject to what we say about the meaning of the phrase “in good time” later, this breach has been made out.  Secondly, the Employment Tribunal held that there was a failure to hold meaningful consultations about ways of avoiding the dismissals under section 188(2)(a).  GMB apparently did not submit that there were breaches of section 188(2)(b) and (c).  In submissions Mr Legard accepted that after 8 February 2002, Dewhirst did all that it could to soften the blow and that his case was primarily that there had been a failure to consult about ways of avoiding the dismissals.

25	The authorities makes clear that the duty to consult is a duty to hold meaningful consultations.  We refer to the frequently repeated dictum of Hodgson J in R -v- Gwent CC ex parte Bryant [unreported] cited in, among other places, Middlesborough Borough Council -v- TGWU:
“Fair consultation means:
(a) consultation when the proposals are still at a formative stage;
(b) adequate information on which to respond;
(c) adequate time in which to respond;
(d) conscientious consideration by an authority of the response to consultation.”
H H Judge Clark put the matter in this way (see paragraph 28):
“Another way of putting the point more shortly is that fair consultation involves giving the body consulted a fair and proper opportunity to understand fully the matters about which it is being consulted, and to express its views on those subjects, with the consultor thereafter considering those views properly and genuinely.”

We also bear in mind the approval by Glidewell L J of a passage in Harvey in R -v- British Coal Corporation Ex parte -v- Vardy [1993] IRLR 104:
“I agree with the passage in the current edition of Harvey on Industrial Relations.  In paragraph 1365 the learned editor says:
‘In substance, the Act places on employers an obligation to plan any redundancy programme well in advance, and to do so in conjunction with the unions where appropriate.  Although it is mainly directed at larger-scale redundancies, it should be emphasised that its provisions also apply where the employer proposes to make even one single employee redundant … However, according to the interpretation so far placed upon the Act by the English courts, the obligation is not so much to consult with the unions on whether there should be redundancies, but rather to consult on how to carry out any redundancy programme which management deems necessary.”

26	We have already drawn attention to findings by the Employment Tribunal at paragraphs 6 and 7.  Mr Sendall submits that in effect the Employment Tribunal found that Dewhirst was already in breach of its obligation to consult under section 188(2)(a) at the moment that the obligation to consult arose, on the Employment Tribunal’s findings, on 25 January 2002.  Mr Sendall submits that it is clear that the obligation to consult is triggered by the “proposal”, so there cannot be any obligation to consult before that date.  Against this, Mr Legard has submitted that it is necessary to look at the Decision of the Employment Tribunal as a whole, and refers in this regard to Middlesborough Borough Council -v- TGWU.  We agree with this particular submission.  He also has drawn our attention to the fact the Employment Tribunal found, in relation to an approach made by Dewhirst to the Prison Service, “which on its terms the Tribunal finds to be relatively half-hearted” (see 3:12:5).  Further, in paragraph 3:12:6, the Employment Tribunal considered that Dewhirst had demonstrated:
 “a more negative than positive attitude to solution finding an attitude characterised rather more of inviting the union to make suggestions and an employer simply relying upon its past efforts as if they are to some extent illustrative of what would be the expected result if any further efforts were made in the future.”
However, he was sufficiently realistic to concede that the last part of paragraph 7 of the Employment Tribunal’s Decision did not sit happily with its earlier findings as to the effective trigger date.

27	We have concluded that Mr Sendall’s submissions in this regard are correct.  We have considerable difficulty in accepting that there can be a breach of the obligation to engage in meaningful consultations that arises immediately the obligation to consult arises.  In our opinion, meaningful consultations must be seen in the context of the state of affairs pertaining at the trigger date.  We have come to the conclusion that the approach of the Employment Tribunal in this regard is so flawed that we have little confidence in its conclusion that there was a breach of section 188(2)(a).  It may be that a breach could be made out, but it cannot be made out on the basis as found by the Employment Tribunal.  In our opinion, if there was no obligation to consult until 25 January, there cannot be any breach of that obligation until after that obligation has accrued.  As we have said, the meaningfulness of negotiations must be assessed by reference to the position as it was when the trigger proposal was first made.  At that point in time the employer considered that closure on economic grounds was inevitable and meaningful negotiations must be assessed against that factual background. 

28	The appeal in this regard, therefore, must be allowed.  

“In good time”
29	The issue as to whether Dewhirst commenced consultations “in good time” is, of course, linked to its duty to consult meaningfully.  The statute does not stipulate that consultation must be commenced immediately upon the proposal to make redundancies but be made “in good time”.  As we have noticed, the original statutory provision required the duty to consult “at the earliest opportunity”, as Ms Corby pointed out, but Parliament chose to change this to provide for an obligation to consult “in good time”, which is the language of the Directive.  According to Harvey this was intended to reduce the obligation on employers to the minimum required by the Directive.  In the present case the Employment Tribunal found that consultation should have commenced immediately upon the proposal being made (25 January) even though the Employment Tribunal had found this was already too late for meaningful consultation in relation to ways of avoiding dismissals.  

30	There is no clear explanation in the Employment Tribunal’s Decision of why they found the duty arose immediately, bearing in mind that over ninety days elapsed, in any event, from 7 February before the first redundancies took effect.  We derive assistance again from the judgment of Lindsay J in MSF -v- Refuge Assurance at paragraph 30:
“Secondly (although it may, with the first step described above, form part of one integrated decision-making process), the employer has to form a view as to how long (given willingness and good faith on both sides and given that agreement has to be taken to be at least possible) it could reasonably be expected to take to negotiate an agreement covering at least the minimum subjects specified in Article 2(2).  That exercise would provide the employer with a number of days.  As we read it, the scheme of the Directive then requires a jobbing backwards such that consultation under the Directive is required to begin not less than that number of days before the contemplated collective redundancy date.”
Here, Lindsay J is of course talking about the obligation under the Directive.  At paragraph 40 he returned to the topic, having considering a number of domestic authorities.  

“Our view of these domestic authorities (none of which binds us) does not require us to depart from the conclusion expressed above as to the point of time at which, under the Directive, consultation has to begin.  Whilst it is not necessarily the case that the beginning of consultation has to coincide with the employer’s first contemplation of collective redundancies, it is at that point that he must turn his mind to the ‘jobbing back’ exercise that we described in our paragraph 30 above.  That jobbing back then identifies when consultation should begin in cases where the Directive applies.”

31	Even though is not possible to reconcile the meaning of the term “proposes” with that of the Directive’s “contemplates”, it seems to us that the “jobbing back” exercise is appropriate, both under the Directive and under section 188.

32	Mr Legard submits that there was no reason, in any event, why if the trigger date was 25 January, consultation could not have started at once.  He submitted that in the context of this case, the firmer the proposal, the greater the urgency of starting consultation.  He did not consider that submissions were made as to the meaning of the phrase “in good time” to the Employment Tribunal.  Further, the Employment Tribunal was entitled to take account of the fact that in the respect we have mentioned above, consultation was not meaningful.  

33	We are not able to accept that the Employment Tribunal correctly approached the issue of whether consultations were begun in good time.  The Employment Tribunal should have adopted the approach set out by Lindsay J in MSF -v- Refuge Assurance.  It should have taken account of the fact that over ninety days elapsed between the commencement of consultation and the redundancies first taking effect.  The Decision was also flawed by the holding which we have dealt with earlier that the breach of the obligation to have meaningful consultations occurred at the moment that the duty to consult was triggered.  

Amount of protective award
34	As we have said, the Employment Tribunal found that the protected period should start on 25 January, some fifteen days before the announcement and commencement of consultation, and found that the appropriate period for the award was fifteen days.  Dewhirst submitted firstly that the Employment Tribunal were wrong to find that the protected period began on 25 January 2002 because it is quite clear at section 189(4)(a) that the period commences on the date the first dismissals take effect.  Secondly, it was submitted that the Employment Tribunal had failed to give any credit to the employer by having regard to the fact that the statute required consultations to start “in good time” rather than “at the earliest opportunity” or “at once”.  The Employment Tribunal had also failed to take account of the fact that there were no dismissals to take effect within ninety days of the date when consultation in fact began, on 8 February.  

35	Mr Sendall submitted that the Employment Tribunal should in determining the protected period firstly have assessed the maximum period of warning that should have been given, and deduct from this the period of warning that actually was given, and then adjust to have regard to other relevant factors.  

36	Our attention was drawn to Spillers-French (Holdings) Ltd -v- USDAW [1979] IRLR 339.  The EAT held that in considering whether to make a protective award, the Employment Tribunal was concerned to compensate employees for the loss of the opportunity to consult, rather than for the loss or potential loss the actual remuneration during the relevant period.  

“It seems to us that when the decision is taken, the question that has to be looked at is not the loss or potential loss of actual remuneration during the relevant period by the particular employee.  It is to consider the loss of days of consultation which have occurred.  The Tribunal will have to consider, how serious was the breach on the part of the employer?  It may be that the employer had done everything that he can possibly do to ensure that his employees have found other employment.  If that happens, a Tribunal may well take the view that either there should be no award, or, if there is an award, it should be nominal.  It does not seem to us that the Tribunal has to be satisfied, before it can make an award, that the employees have been paid during the relevant period.  Indeed, if the application is made before the dismissals take place, these facts may not be known.  It might be quite impossible to know until the end of the period, what is the position so far as earnings from the same employer or from other sources are concerned.” 
[See paragraph 30.]
In Talke Fashions -v- Amalgamated Society of Textile Workers and Kindred Trades [1977] IRLR 309, the EAT, presided over by Kilner Brown J held that the Employment Tribunal should have exercised its discretion as to whether to make a protective award adopt a broad and equitable approach, having regard to the loss of meaningful consultation and the gravity of the employer’s default.  In the present case, the Employment Tribunal evidently felt that fifteen days for the protective award was appropriate.  There is no reasoning to support its conclusion.  Further, its approach was falsified by not only its view that Dewhirst was in breach of its obligation to engage in meaningful consultations, as at 25 January 2002, in relation to avoiding dismissals, but also because of its incorrect approach as to the date when the protected period commenced under section 189(4).  The Employment Tribunal may not have understood the submissions made to them by Mr Legard and Mr Sendall.  Both made it clear to us that in their submissions to the Employment Tribunal they had not suggested that the protected period accrued before the date when the first dismissals were to take effect.  The Employment Tribunal may have conflated the issue of the commencement of the protected period with the length of the protected period and protective award.

37	It seems to us, therefore, that this part of the Decision of the Employment Tribunal cannot stand.

38	We have considered whether it is more appropriate to remit this matter for a re-hearing before a differently constituted Employment Tribunal or simply to remit it to the Employment Tribunal with a direction that it should reconsider its judgment in accordance with our decision.  Having regard to the terms of the overriding objective, we have come to the conclusion that the parties should be spared the expense of a complete re-hearing.  Accordingly, we allow the appeal and direct that the matter be remitted to the Employment Tribunal to reconsider the matters that we have set out on the basis that the date the employer proposed to dismiss employees as redundant was 25 January 2002; it will be necessary to reconsider whether (a) there was a breach of the duty on the part of Dewhirst to engage in meaningful negotiations in relation to avoiding dismissals under section 189(2)(a); (b) when the consultation process should have started so as to be “in good time”; (c) the extent of the protected period.  

39	We do not intend to bind the hands of the Employment Tribunal in any way, but the Employment Tribunal may wish to consider holding a directions hearing to decide how the re-hearing might be conducted, and whether it is necessary or appropriate for further evidence to be called by either party.

40	We are extremely grateful to both Mr Sendall and Mr Legard for the careful, helpful and succinct submissions.