D was considering two options to save the company: One was to sell the business, and the other was to sell its assets. The latter plan would involve mass redundancies (i.e. 150 within the 90 day period required by s.188). Question was whether there was a need for a consultation process to begin, given that it hadn’t yet been decided whether the plan involving redundancies would occur, given that s.188 duty arose when the employer was “proposing” to make people redundant etc. The EAT held that here there was such a ‘proposal’ and so a s.188 consultation had to occur. It construed the word ‘proposing’ as including this situation in which an employer had decided to take one of the two proposed actions, one of which would lead to redundancies. However the word propose was thought to have a narrower meaning than mere ‘contemplation’.
Lord Johnston: The word ‘propose’ connotes a state of the employer’s mind (intention). “Contemplation enjoins a large number of options or at least more than one, while 'propose' enjoins a specific proposal. We therefore incline to the view that it is extremely difficult if not impossible to construe 'propose' as wide enough to cover 'contemplation”. Because of the decision to actually do one of the two options, this wasn’t mere contemplation.