The duty to consult collectively applies where it is proposed to make 20 or more redundancies at one establishment, but there is no statutory definition of ‘establishment’.

In Renfrewshire Council v Educational Institute of Scotland, the EAT had to consider whether the relevant establishment at which redundant teachers worked was their individual schools, or the Education and Leisure Service of the Council.

The employment tribunal judge originally decided that the relevant establishment was the Council’s Education and Leisure Service. The tribunal judge focussed on where the teachers could be required to work under mobility clauses contained in their contracts of employment, and on the central control exercised by the Council over various employment issues such as dismissal and recruitment. However, this approach was criticised by the EAT, which made some helpful general points in what has been a tricky area for employers to date:

  • in most cases, an establishment will be less than the employer’s whole undertaking;
  • an establishment implies a physical rather than an organisational presence; and
  • the assessment should be employee-focussed rather than employer-focussed.

The EAT held that the tribunal judge should not have focussed on mobility clauses which in practice had never been enforced, or on the body which controlled aspects of the teachers’ work. More emphasis should have been placed on where the teachers actually worked. The case has been sent back to the tribunal for further consideration. However, assuming that the tribunal decides that the teachers were assigned to individual schools, this would result in them falling outside the collective consultation regime.