The Employment Appeal Tribunal has now published its reasoned decision explaining why employees across the entire Woolworths operation should get protective awards, even if they were employed at shops with fewer than 20 employees.
Our domestic legislation provides that the obligation to consult collectively arises where an employer “is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less” (emphasis added). The EAT is now saying that employment tribunals should ignore the words in italics when hearing claims for protective awards, because their inclusion prevents the legislation from implementing the Collective Redundancies Directive.
This argument is not new, but in recent years our courts have got a lot bolder in complying with their obligation to interpret our legislation in a way that gives effect to any EU directive it is designed to implement. This latest decision is perhaps the most extreme example of the new radical approach in the employment field, and largely for this reason an appeal to the Court of Appeal seems likely.
In the meantime employers are left with considerable uncertainty. An establishment-free test will make a very significant difference to the point at which the obligation to consult collectively is triggered, particularly with large and complex operations spread across a number of sites. There is no doubt that the EAT’s latest interpretation of the law will raise unions’ expectations significantly, even if employers decide to hold off making immediate adjustments to their redundancy procedures, pending further guidance from the Court of Appeal or, possibly, Government intervention.