As a result of the EAT’s ruling in the Woolworths/Ethel Austin cases, once an employer proposes that at least 20 employees are to be made redundant in a 90-day period, they are under an obligation to collectively consult as the place of work (i.e. establishment) of the employees is now irrelevant. The EAT removed the wording “at one establishment” as it did not believe this wording was compatible with the underlying European Law (EU Collective Redundancies Directive) as it was more restrictive than was permitted under the Directive. Please see our previous blog “Collective Redundancy Consultation – EAT abolishes idea of different establishments” for further details.
It is our understanding that the Secretary of State (who is responsible for paying the protective awards now due to the 4,400 employees in the Woolworths/Ethel Austin cases) is currently considering whether or not to appeal the decision to the Court of Appeal. Should it decide to do so, then a recent case in Northern Ireland is likely to be of great significance because the Northern Ireland Industrial Tribunal has decided to refer a number of questions to the ECJ on the meaning of the Directive. One of the questions posed by the Northern Ireland Industrial Tribunal concerns the meaning of the words deleted by the EAT in the Woolworths/Ethel Austin cases. Essentially the Northern Ireland Industrial Tribunal is asking the ECJ if the obligation to collectively consult is triggered where at least 20 employees are to be made redundant in a 90-day period across all of the employer’s establishments (i.e. a holistic approach) or simply in a particular establishment (i.e. a site-by-site approach). The Tribunal recognised that, on its face, the relevant provision of the NI legislation seems only to apply where 20 or more employees are being made redundant within a particular establishment which is the interpretation adopted by the EAT and which lead to the deletion by the EAT of the words “at one establishment” as, having reviewed the Directive, the EAT determined that the Directive required a holistic approach. It will therefore be extremely interesting to see what the ECJ makes of all of this!