The European Court's ruling in USDAW v WW Realisation 1 Ltd (the "Woolworths" case) means that the EAT's decision in the case in 2013 – that the obligation to inform and consult would arise whenever an employer proposed redundancy dismissals of 20+ employees within 90 days, irrespective of the number of establishments concerned – is no longer correct.
The tribunal in the Woolworths case had decided that only employees at stores with 20 or more employees had to be consulted, because each store was an establishment, rather than the retail operation as a whole. Since the legislation requires the dismissals to be "at one establishment", this meant that there was no duty to consult in respect of redundancies at the stores with fewer than 20 employees.
But the EAT decided that UK legislation was inconsistent with the European Directive which it was intended to implement and that the words "at one establishment" must in effect be deleted. This was a significant change to the law; hence the Court of Appeal's decision last year to refer the issue to the European Court.
The European Court's decision is that "establishment" means "the entity to which the workers made redundant are assigned to carry out their duties", which it is for the Court of Appeal to determine. The Directive does not require the number of dismissals in all the employer's establishments over a 90 day period to be aggregated. The original tribunal decision – that each of the stores was a physically distinct premises with its own organisation, headed by its own store manager, and with employees who worked only at one particular store – is now likely to be reinstated.