The Court of Appeal* in the United Kingdom recently referred the vexed question of the timing of the obligation to consult in a collective redundancy to the CJEU. It is unclear whether the obligation to consult arises before or after a strategic or commercial decision that will lead to redundancies.
The court was of the opinion that it was unclear from the previous CJEU decision** as to when the duty arose. In Akavan the court said that the obligation to consult is triggered where strategic decisions or changes in activities occur which compel the employer to contemplate or plan for collective redundancies. The upshot of the case was that the trigger for consultation may have been sooner than previously anticipated.
The relevant provision under Irish law requires an employer to consult when an employer proposes to create collective redundancies. This left employers in a dilemma as to the actual trigger point for consultation given the apparent incompatibility of the Irish provisions with the decision in Akavan. On foot of this decision, the prudent view was to consult sooner rather than later in a collective redundancy scenario.
It is hoped that the outcome of this recent referral will help clarify the ambiguity surrounding the timing and scope of employers' consultation obligations in a collective redundancy.