Last week the EAT announced that USDAW had won its appeal in the Woolworths redundancy case (see our posting from last year for details of the ET decision). We are still waiting for the full reasoned decision.
Early reports (including this press release from USDAW’s lawyers) suggest that the EAT has accepted that redundancies declared across the whole national chain of shops should be aggregated. That seems to involve disregarding the rule in our domestic legislation that the obligation to consult should be assessed by reference to each particular establishment where the employees at risk of redundancy are working, rather than across the whole of the employer’s business.
The justification for ignoring the express wording in the Trade Union and Labour Relations Act comes from the Collective Redundancies Directive. For many years it has been argued that the UK Government, by adopting a hybrid test, has ignored the Directive which requires member states to adopt a trigger based either on relative numbers at a particular establishment, or absolute numbers across the whole of an employer’s business, but not a mixture of the two. However no division of the EAT has been bold enough go this far, at least until now.
We will need to see the written decision before drawing any firm conclusions, but in the meantime employers planning 20 or more redundancies within any period of 90 days across multiple sites will need to consider carrying out collective consultation – regardless of the literal wording of the Act.