D was in financial difficulty and it became clear, once a potential investor withdrew interest, that the company would have to close. Therefore all employees were dismissed by notice and the D tried to argue that it wasn’t in breach of (forerunner to) art.188 because the case fell within the exception under article 188(7) of ‘special reasons’ for noncompliance. CA held that the circumstances were not special and thus D was in breach of 188.
Lane LJ: Approach is to ask (1) were there special circumstances that (2) rendered compliance with s.188 not reasonably impractical, and if so (3) did the employers take all such steps as were reasonably practicable. For (1) to be fulfilled there have to be circumstances special and specific to the offence, not to the offender. Insolvency on its own is not a special circumstance- it depends on the cause of the insolvency e.g. a sudden disaster might be unique, whereas a gradual running down would not.