The Court of Appeal has referred the case of USDAW v Ethel Austin Ltd (in administration) and another to the CJEU. This case is more commonly referred to as the “Woolworths case”.
As reported in our previous briefing, the EAT held that the words “at one establishment” in section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) were incompatible with the underlying EU Collective Redundancies Directive and that they should therefore be deleted so that collective redundancy requirements are triggered whenever an employer contemplates dismissing 20 or more employees for redundancy within 90 days, regardless of the number of sites / offices it has within the UK.
The government appealed this decision to the Court of Appeal and their appeal was heard on 22 January 2014. The Secretary of State for BIS had applied for the case to be stayed pending the outcome of the Northern Ireland Industrial Tribunal’s reference to the CJEU in the case of Lyttle and others v Bluebird UK Bidco 2 Ltd which concerns the same issues. However, the Court of Appeal decided to make its own reference to the CJEU.
The exact wording of the questions to be referred to the CJEU are to be agreed shortly, but it expected that the questions will relate to the construction of relevant provisions of the EU Directive, including the meaning of establishment, and whether the Directive has direct effect in the UK.