One of the key questions on an advisory basis for employers is when does the duty to consult arise. The short answer is when the proposal is at a formative stage but the EAT recently considered the matter in the case of Ivor Hughes Educational Foundation v Morris  in the case of a collective consultation situation.
We await the unresolved question from the case of USA v Nolan due to be heard on appeal but the EAT in this case did not need to decide the point directly as to which test to apply as it was able to reach its own conclusion on the facts in this case.
Here the school decided in February 2013 that it would have to close at year’s end if pupil numbers had not increased by April. Ultimately, the school decided to close in April 2013 and there was never any collective consultation over the decision, in breach of Section 188 and its collective consultation obligations. The Tribunal found a protective award of 90 days pay per employee in respect of the failure to consult over the school closure and the School appealed.
The EAT said that the decision taken in February 2013 to close the School, unless numbers increased was the date when the duty to consult arose. It was either a strategic decision which required the employer to plan for redundancies or was a fixed (even if it was provisional) intention to close. The School argued on appeal that there were special circumstances behind its decision not to consult for fear of confidence in the school being lost but the EAT did not accept this as it found that the school had not given any thought to consultation so it would not rely on special circumstances with the benefit of hindsight.