According to the press release issued by the Court of Justice of the EU (ECJ), it appears that the chaos created by the ‘Woolworths’ decision in the summer of 2013 is now behind us!
You may recall that once upon a time an ‘establishment’ for the purposes of collective redundancy consultation was essentially the place or premises (and in the case of Woolworths the store) at which the individual worked. However, in July 2013 the Employment Appeal Tribunal ruled in the case of USDAW v Woolworths and held that there should be a purposive construction of s188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’) so as to delete the words “at one establishment”.
“Where an employer is proposing to dismiss as redundant 20 or more employees
at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all persons who are appropriate representatives of any of the employees who may be affected….”
The EAT ruling created enormous risk for employers, and endless debate amongst lawyers.
In October 2013 the Secretary of State was given leave to appeal to the Court of Appeal which, in turn, in January 2014 referred the matter to the Court of Justice of the European Union. In January 2015 the Advocate General’s preliminary opinion provided some comfort, indicating that the wording of the EU Collective Redundancies Directive 98/59 (from which the relevant provisions in TULCRA essentially flow) the does not require (nor does it preclude) aggregating the number of dismissals in all of the employer’s establishments.
The ECJ has now handed down its decision and confirmed that ‘establishment’ does NOT refer to the employer as a whole but (as was the position before 2013), to the entity or individual workplace to which the redundant workers were assigned to perform their duties. Whilst the ECJ has formally referred the Woolworths case back to the Court of Appeal, the Court of Appeal’s reversal of the EAT’s July 2013 decision is likely to be a mere formality.