In an important case brought by the union USDAW on behalf of former employees of Woolworth and of Ethel Austin, domestic legislation has been held to limit unjustifiably the European legislation on which it was based.
The Trade Union & Labour Relations (Consolidation) Act 1992 requires employers to undertake collective consultation where they are proposing to dismiss as redundant '20 or more employees at one establishment within a period of 90 days or less'. The collective consultation obligation comes from the European Collective Redundancies Directive but the wording in that directive is different from the wording in TULR(C)A and, in particular, does not have a ‘one establishment’ limitation in cases involving more than 20 redundancies in a 90 day period. The anomaly has been spotted before but the courts have not seen fit to interfere with the very clear wording of the statute until now.
In these cases, the union already, at first instance, obtained a protective award due to the employer’s failure properly to consult in relation to the many redundancies. Because of the law as it stood, however, that award only benefitted employees at shops where more than 20 people lost their jobs (as each shop was deemed to be a separate ‘establishment’). This led to an anomaly whereby, simply by virtue of which shop an employee worked in, some employees were entitled to an award and some were not, despite neither having been properly consulted. On appeal, the Employment Appeal Tribunal accepted USDAW’s argument that, in order to be compatible with the Directive, the words ‘at one establishment’ must be disregarded and, until any appeal (and it is not certain that there will be one), that is now the case.
What this means is that, when considering whether there is an obligation collectively to consult and, if so, how long that consultation should last, employers should no longer undertake a detailed analysis of whether their various shops/branches/offices count as separate establishments as they will not. All of the employer's redundancies, whereever they take place, will now be counted together.