We use cookies to make your experience of our website better. Some of these are set by third party Google Analytics to help us analyse website traffic. To comply with privacy regulations, we require your consent to set these cookies. If you continue to use the site without selecting an option we will assume you are happy for us to use cookies.

Stop Press - Important Collective Redundancies Development

Stop Press - Important Collective Redundancies Development

This week the Employment Appeal Tribunal (EAT) handed down its full written judgment in the case commonly known as USDAW v Woolworths. The decision indicates that the duty to collectively consult is triggered where 20 or more redundancies are proposed and that there is no requirement that these must be at “one establishment” operated by the employer. 

This is a radical departure from previous interpretation of collective redundancy legislation and has significant consequences for employers with multiple workplaces.

Background

The case was an appeal against two Employment Tribunal judgments on the application of collective redundancy legislation. The sole issue at appeal was whether the duty to collectively consult is owed when 20 employees are dismissed by an employer (regardless of where they are based) or when 20 are dismissed in any one establishment, referred to by the EAT as being either “a site-by-site atomised approach, or a holistic approach”.

The EAT identified a clear discrepancy between the UK domestic legislation and the overlying European Directive in which there is no reference to redundancies requiring to be “at one establishment”.  It accepted therefore the argument that the existing domestic provision is more restrictive than the Directive.  On the basis of its duty to interpret domestic legislation so far as possible to give effect to European law, the EAT held that the words “at one establishment” should be read as being deleted from the domestic legislation in order to apply the protective purpose of the Directive in affording worker rights.

Accordingly, the duty to consult over collective redundancies arises where 20 or more employees are to be dismissed irrespective of where they work.

Implications for employers

This is a radical departure from previous interpretation of collective redundancy legislation. It is not clear yet whether the case itself will be appealed but it seems likely that the EAT’s decision will be subject to future challenge through case law.

Meantime, employers with multiple workplaces should exercise caution before implementing collective redundancies, whether fresh or ongoing exercises, and consider the ramifications of this important decision in the context of their business. Notwithstanding that the minimum period between consultation and dismissal has recently been reduced for 100 or more dismissals to 45 days (see our blog http://bit.ly/WMmW5o), the starting point for any protective award for a failure to collectively consult remains at 90 days per employee.  A price no employer can afford to ignore…

Morag Moffett
Director

LChalmers