Case law update: Collective consultation - attack on establishment continues

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The European Court of Justice is asked to ‘wade in’ on ‘establishment’ debate.

Hot on the heels of the Employment Appeal Tribunal (EAT) publishing its written reasons in the landmark Woolworths case - confirming a significantly broadening of the scope of collective consultation obligations when making redundancies (see Case law update: Employment Appeal Tribunal is anti-establishment) - an Industrial Tribunal in Northern Ireland confirms that it has already asked the European Court of Justice (ECJ) to rule on the meaning of establishment.

In Lyttle v Bluebird, a Northern Ireland industrial tribunal also questioned whether the words “at one establishment” (contained Northern Ireland’s equivalent legislation to s188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA)) were compatible with the EU Collective Redundancies Directive.

Unlike the EAT in the Woolworths case, the Northern Irish tribunal decided to refer its various questions on the meaning of ‘establishment’ to the European Court of Justice (ECJ) for a ruling on the correct interpretation of the Directive.

It is still unclear if the judgment in Woolworths is going to be appealed to the Court of Appeal and, if so, what the Court of Appeal’s response to the current ECJ referral will be. In the interim, pending any further developments in this area, the EAT’s judgement in the Woolworths case represents the current law. However, members should be aware that there is still scope for further radical change in this area in the not so distant future.

We will be dealing with the practical implications of the Woolworths case in detail at our forthcoming Member Briefings. In the interim, members currently facing redundancies or considering making significant changes to terms and conditions should contact their EEF advisor for advice and assistance.

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