On a date before March 2006, a decision was made in the USA to close a US base in Hampshire. The civilian workforce were informed of the closure in April, consultation with employee representatives commenced in June and did not concern the reason for the closure, notice of dismissal was given at the end of June and employment ended in September.
An Employment Tribunal found that consultation had not started "in good time" (as required by section 188 TULRCA 1992) and that the US had failed to consult the representatives about the reason for the closure of the base. In doing so, it followed the Employment Appeal Tribunal's decision in UK Coal Mining Ltd v NUM which held that the duty to consult is triggered when a closure is proposed which will lead to redundancies, and that the consultation should concern the reasons for the closure. On appeal, the US argued that the collective consultation obligations only arise after the employer has made the decision to close the workplace and is accordingly proposing to dismiss the employees as redundant. If correct, UK Coal was decided in error.
The Court of Appeal considered this point was unclear under the Collective Redundancies Directive and EU case law. It sought clarification from the European Court of Justice which, in turn, declined to respond on the grounds that the armed forces falls outside the scope of the Directive. The Court of Appeal will now have to decide the trigger point for collective redundancy consultation - a decision that will be keenly awaited given the key issues involved.