- The courts have traditionally taken a restrictive approach to the special circumstances defence in the context of collective redundancies.
- Are they likely to be more generous in the context of the coronavirus pandemic?
In one of the strange ironies of employment law, the leading authority on the special circumstances defence goes back to a routine bakery business insolvency in the 1970s: Clarks of Hove v Bakers Union [1978] IRLR 366, [1979] 1 All ER 152.
The defence can be deployed to relieve an employer from some of the collective information and consultation requirements which are triggered by a proposal to dismiss as redundant 20 or more employees at one establishment within 90 days.
Clarks looked at the wording which is now found in s 188(7) of the Trade Union and Labour Relations (Consolidation) Act 1992: ‘If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsection (1A), (2) or (4), the employer shall
