United States guilty of failing to consult

On appeal by the US the employment appeal tribunal found the employment tribunal had not erred in finding that the United States of America had breached the Trade Union and Labour Relations (Consolidation) Act 1992 s.188 by failing properly to consult representatives of civilian employees about the closure of one of its army bases situated in the United Kingdom.

The arguments raised by the USA included that s.188 should be construed in light of the fact that the decision to close would be covered by public law, so as to impose no obligation on the US to consult on the reason for closure. Alternatively, in exercising its discretion to make a protective award, the tribunal had erred in failing to take into account the fact that the closure decision was an act of state, and therefore that the failure to consult over it should not have attracted a protective award.

The EAT held there was no principle of law, and no other authority had been produced to the EAT, that established or suggested that the fact that the act would be covered by public law affected the construction of a statute engaged by it, rather than the court's jurisdiction in relation to the act. It was stated however that the US could have claimed state immunity or alternatively they could have established a defence under s.188(7) that there were special circumstances rendering compliance with s.188(2)(a) not reasonably practicable.