What do you do when you haven't got time to consult?

The Shanahan case doesn't break that much new ground. The obligations under s188 are well established as is the penalty regime. What it might do is stop the knee jerk reaction of Employment Tribunals (ET) to failure to comply - "You are not compliant, you will pay 90 days' pay" - and temper it with a more proportionate approach where employers are placed in an impossible position, even if it is their own contract that got them there in the first place.

It also reinforces the long-established point very clearly that the, "It's not our fault, time was short what else could we do?" argument just won't wash other than in the most extreme circumstances. Any employer, before deciding it can do nothing at all, has to look at the time it has and whether something can be done. It is true that some ETs want a perfect process - but just because you don't have time for absolute compliance doesn't mean you couldn't do something.

So, faced with a client and a change of plan,or even a sudden decline in business, what are the options?

Start by looking at your own timeline - what do you need to do to keep the client happy (or the business working) and when have you got to have it in place?

If you know how many people it might affect, do they have to "go" all at once or could you do it in smaller batches?

Can you deploy them to another site?

If you have any time, be seen to engage with the union/staff side; do what you can in the time available. The clear message here is that doing something, anything, that makes you semicompliant or even making an effort should be looked at as being one of those "steps towards compliance....as are reasonably practicable in those circumstances".

The special circumstances defence has been run, mainly unsuccessfully, many times over the years. This and other recent cases, including ones where it is clearly a head office decision imposed on local management who have no say in the matter, have failed because the defence is designed to be of limited use. If you have to use it out of necessity, or if you are tempted to take the risk and not bother consulting, you need to have something very "special" to make it work.