Important EAT Decision Extends Scope of Collective Consultation

The EAT in USDAW and others v WW Realisation 1 Ltd (in liquidation) and another has decided that the Trade Union and Labour Relations Consolidation Act 1992 in relation to collective consultation on redundancy does not implement the Collective Redundancies Directive.

 Under Section 188 of the 1992 Act, employers are obliged to collectively consult with a recognised trade union or employee representatives where they propose to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less.

The brief issue in the case was whether a Woolworths store employing fewer than 20 employees was an establishment or not and whether establishment should be understood in a much wider context.

The EAT has decided that going forward references to "at one establishment" should be disregarded or ignored when calculating the number of proposed redundancies i.e. collective redundancy obligations are triggered whenever an employer proposes 20 or more redundancies within 90 days or less, irrespective of whether these are at the same or different establishments.

This is said to give "purposive effect" to the Directive.

The written judgment is not available yet and it may yet be the subject of an appeal. In the meantime, those employers considering redundancies will need to take this important decision into account before embarking on a redundancy exercise. The decision has potential far-reaching consequences by rendering the term "establishment" somewhat redundant. An employer will be obliged regardless of the numbers employed in the business units affected to collectively consult, provided across the employer 20 or more redundancies are proposed within a 90 day or less period.