It is not just the EAT which has been busy determining when collective consultation obligations arise. The Northern Ireland Industrial Tribunal has sought a decisive ruling from the European Court of Justice on the true extent of the duty to consult under the Employment Rights (Northern Ireland) Order SI 1996/1919 (the "Order"), which provides that an employer must carry out collective consultation where it is proposing to dismiss as redundant '20 or more employees at one establishment' within a period of 90 days or less. This is significant to practitioners in England and Wales, as the Order mirrors the same requirement articulated in section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992.
The Claimants had worked at stores with fewer than 20 employees, Bluebird UK (who had acquired the Claimants under an asset sale from Bonmarche following its insolvency) did not consider that the collective redundancy consultation obligations were triggered on the closure of a number of those stores.
The matters of contention were (i) whether each individual store amounted to an 'establishment' or whether the Claimants were correct in arguing that the Northern Ireland region was the relevant 'establishment' for the purposes of the consultation duty and (ii) whether the phrase 'at least 20' referred to the number of redundancy dismissals across all of an employer's establishments or to the number of dismissals per establishment.
The Northern Ireland Industrial Tribunal considered there was a need to seek clarification from the ECJ on the correct interpretation of these concepts as set out in the EU Collective Redundancies Directive No. 98/59, from which the Order derives.
A determinative ECJ ruling will be welcomed in light of the EAT's decision in the Woolworths and Ethel Austin case also referred to in this month's HR Headlines. The Northern Ireland Industrial Tribunal in this case hinted that its view would be that each store amounted to an establishment. It will therefore be interesting to see what view the ECJ takes and whether it supports the Northern Ireland Industrial Tribunal's view or the EAT's view.