We understand from a press release from the unions' solicitors, that the appeal on behalf of the employees in the case of USDAW and others v WW Realisation 1 Ltd (in Liquidation) and another has been successful before the Employment Appeal Tribunal (EAT). It has been reported that the EAT has ruled to ignore the wording "at one establishment" in collective redundancy cases involving 20 or more employees.
The Trade Union and Labour Relations (Consolidation) Act 1992 currently provides that consultation must take place "[w]here an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less...". However, it has been recognised for some time, that the words "at one establishment" are incompatible with the underlying EU Collective Redundancies Directive, which does not reflect an 'establishment test'. Until now, the UK courts had been unwilling to depart from the wording in the UK legislation.
However, a press release from the claimants' solicitor in this case has revealed that, even though the UK legislation expressly sets out an 'establishment test', the EAT has ruled that the UK legislation should be interpreted in line with the EU Directive. Accordingly, it has apparently ruled that the "at one establishment" wording should be disregarded when establishing whether the collective redundancy consultation requirements are to be triggered.
The full judgment from the EAT is eagerly awaited and should provide further clarity on the rationale behind its decision and the impact on future cases.
Impact for Employers
The EAT's ruling has the potential to be of real significance for employers who operate a number of stores, offices or sites across the UK. If the ruling does indeed confirm that the establishment test should be disregarded, then once it is proposed that at least 20 employees in a single business are to be made redundant, their place of work and location would be irrelevant for the purposes of triggering the consultation obligations. This case would also be a further example of the UK judiciary being prepared to read words into UK legislation to bring it into line with our obligations under European Law.