The USDAW union, acting for the affected staff, brought claims in the Employment Tribunal for protective awards of up to 90 days’ pay per employee . Whilst staff working at larger stores received such awards, over 4,000 employees of the doomed retailers did not.
This was because the Tribunal decided each individual store counted as one ‘establishment’ and, where there were fewer than 20 employees at a particular store, those employees were excluded from the collective consultation requirements and so were not entitled to protective awards.USDAW successfully appealed to the Employment Appeal Tribunal (EAT) which decided in July 2013 that the UK legislation should be re-written in line with EU principles, so that the establishment where the workers were based became irrelevant.
The result was that employers had to collectively consult whenever there were 20 or more redundancies across their entire business. This greatly increased the likelihood that collective redundancy obligations would be engaged, and practically, made it very difficult for large employers to ensure they were complying with their obligations, or to carry out headcount reductions quickly and efficiently.
Having declined to participate in the EAT hearing, the UK Government brought an appeal against the court’s decision. The case was then heard last November by the Court of Appeal and referred to the Court of Justice of the European Union (CJEU).
Decision of the CJEU
The CJEU’s decision backed the UK Government and Advocate General’s opinion earlier this year which said that UK law and the interpretation of the European Collective Redundancy Directive were compatible.
It held that an 'establishment' refers to an individual workplace (in other words, the entity to which the workers made redundant are assigned to carry out their duties), not to the employer as a whole.
This paves the way for the Court of Appeal to reverse the decision of the EAT.
Implications for businesses
The decision is good news for businesses, particularly those with multiple sites and provides welcome certainty on what is already a complex area of the law. It will lead to less costly and time-consuming redundancy exercises as companies will only have to collectively consult (e.g. consult in accordance with minimum timescales) where 20 or more staff at one establishment are to be made redundant within a period of 90 days.
It is also worth mentioning that on 23 March 2015, the Insolvency Service published a call for evidence on the collective redundancy rules for employers facing insolvency which suggests that a wider policy review on this area of law might be coming up.