EAT?s decision on Collective Redundancies in Woolworths was wrong

05 February 2015

In the Woolworths case on collective redundancy consultation, the Advocate General has released an Opinion saying that the EAT’s decision in Woolworths was wrong.

In an interesting and perhaps surprising development in the Woolworths case on collective redundancy consultation, the Advocate General has today released an Opinion saying that the EAT’s decision in Woolworths was wrong.

Pinsent Masons provides a useful summary of the facts and implications:

The Employment Appeal Tribunal (EAT) ruled last year that the UK legislation on collective redundancy consultation was not compatible with EU law. The EAT decided that the UK rules had to be read as requiring employers to collectively consult whenever an employer proposes 20 or more redundancy dismissals in 90 days or less across its business, regardless of how many redundancies are proposed at any single establishment.

The case is now before the Court of Appeal who referred the issue of compatibility between UK legislation and the EU Directive to the CJEU. In a parallel development, an Employment Tribunal in Belfast referred the same point to the CJEU in relation to the law in Northern Ireland (where the EAT’s decision in Woolworths did not apply directly).

The Advocate General’s Opinion in both cases says that the EAT’s approach in Woolworths was wrong and that in fact the Directive does allow Member States to require collective consultation only when employers propose 20 or more redundancies in 90 days at one establishment. Essentially the Advocate General interprets the Directive as including the very “establishment” test which the EAT said had to be written out of UK legislation.

Of course, this is only an Opinion and is not binding. We still have to wait to see if the CJEU will endorse this approach. However, it does raise hope that we may return to the pre-Woolworths position of consultation obligations being triggered on an establishment by establishment basis. This would mean that organisations would not have to try to keep track of all redundancies proposed across the whole business and would not risk a finding that redundancies which have been implemented at one site without collective consultation are suddenly caught within the duty to consult because another set of proposed redundancies emerge elsewhere in the business (taking the organisation over the “20 or more in 90 days” threshold). It could even mean that large scale redundancies across several sites don’t fall under the duty to consult at all because the number proposed at any one establishment is less than 20.

Read the full summary.