We reported last month on the EAT decision in the Woolworths case which means that collective consultation is required whenever an employer proposes to make 20 or more employees redundant within a 90 day period, regardless of where those employees are located or how they are organised.
The Government has now been given leave to appeal this decision in the Court of Appeal and the hearing is expected to take place next month.
Questions on the meaning of ‘establishment’ for the purposes of collective consultation have also been referred to the ECJ by the Northern Ireland Industrial Tribunal in the case of Lyttle and others v Bluebird UK Bidco 2 Ltd, which predates the Woolworths decision. Like the Woolworths case, the issues in Lyttle arose from the lack of collective consultation where a number of stores with fewer than 20 employees were closed. In light of the discrepancy between domestic law and the EU Collective Redundancies Directive, the Northern Ireland Industrial Tribunal decided to ask the ECJ for a ruling on the meaning of establishment in this context, and on whether the 20 redundancies which trigger the collective consultation obligations must be at one particular establishment, or across all of the employer’s establishments.
In the meantime, employers are advised to proceed cautiously when undertaking a collective redundancy exercise, and to disregard the words ‘at one establishment’ in the legislation where 20 or more employees are to be made redundant.