A hospital in Poland proposed changes to employee terms and conditions as a result of financial difficulties. If employees did not accept the changes they were liable to be dismissed. The CJEU was asked to decide whether collective redundancy consultation was required.
In light of earlier case law, the CJEU confirmed that the termination of an employee's contract following a refusal to agree to a change in terms and conditions falls within the concept of a redundancy. As such collective consultation is required. This is unsurprising and reflects the approach taken in the UK.
However, the CJEU went on to consider when the duty to consult arises. Although the decision is somewhat cryptic, the Court observed that once the employer proposed the contract changes, it should "have expected that some employees would not accept the change to their conditions of employment and that, as a result, their employment contract would be terminated". The consultation procedure in relation to collective redundancies should commence "once the employer intends to make such amendments".
This suggests that consultation may need to begin once contractual changes are proposed, not just once an employer has an idea of how many employees are at risk of dismissal for refusing to agree to changes. It remains to be seen whether the decision will be interpreted in this way. Existing UK case law suggests that an employer is entitled to start consultation at a later stage of the process, once it is clear that twenty or more employees are liable to be dismissed for refusing to agree new terms.