In USA-v- Nolan 2015 the Supreme Court has upheld the decisions of the EAT and Court of Appeal in finding that section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) applied to redundancies at a US military base in the UK.
Having waived its right to claim state immunity, by virtue of taking steps in the proceedings, the USA sought to argue that the legislation should be interpreted such that it did not apply to a foreign state making decisions of a sovereign or governmental nature or that, in the alternative, the relevant amendments to the TULRCA had been made ultra vires. The Supreme Court rejected both arguments, holding that section 188 and the obligation to consult did apply to the USA and to the redundancies at the base in question.
The substantive issue that remains is whether the obligation to consult arises: (i) when an employer is proposing to make a decision that will foreseeably lead to collective redundancies; or (ii) when the employer has already made that decision and is actually proposing consequential redundancies. The case has been remitted to the Court of Appeal for a decision on this point.