At the moment, the duty to consult on collective redundancies arises where the employer is proposing to dismiss as redundant 20 or more employees at one "establishment" within a period of 90 days or less.
In Renfrewshire Council v The Educational Institute of Scotland, a case about teacher redundancies, an initial question had to be answered by the tribunal - whether individual schools should be viewed as establishments. The Employment Judge concluded that individual schools were not distinct entities and were therefore not establishments; instead, it was the Education and Leisure Service of Renfrewshire that was the establishment. This decision was overturned by the EAT on appeal and the issue of what amounted to the establishment was sent back to the tribunal.
However, the current EAT President, Mr Justice Langstaff, also expressed doubt as to whether the approach taken in the UK to the meaning of "establishment" is correct. UK courts and tribunals tend to rely on the European Court decision in Rockfon (which said that the establishment was the work unit to which employees were assigned) and this has resulted in cases such as MSF v Refuge Assurance Plc where the EAT decided that the establishment for insurance staff was the branch office as opposed to the entire field staff. (A similar approach was taken in the tribunal case following the closure of Woolworths stores at the end of last year: each store was an establishment, rather than the retail operation as a whole.) However, in contrast to the position in other European countries, where this approach makes consultation more likely, in the UK this tends to result in fewer situations where collective consultation is required.
Mr Justice Langstaff thought that because Rockfon was a European case, expressly intended to advance the purpose of the Collective Redundancies Directive, it could be understood as meaning that the approach to what constitutes a work unit should be that which most widely confers consultation rights.
We are likely to hear more on this point - in a recent consultation on collective redundancies, the Government suggested it as one of the issues to be covered in a new code of practice.