Case law update: Employment Appeal Tribunal is anti-establishment

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The Employment Appeal Tribunal has (EAT) has published its written reasons in the Woolworths case (USDAW and others v WW Realisation 1 Limited (in Liquidation) and others).

The Employment Appeal Tribunal's judgment confirms that statutory collective redundancy consultation is triggered when there are 20 or more proposed redundancies in a 90 day period across the whole of an employer’s business, irrespective of the establishment where individuals work.

We previously reported the outcome of this case on the basis of the EAT’s oral judgment. The written reasons confirm our understanding of the judgment, which will have very significant implications for employers who operate from more than one site. Many such employers when proposing redundancies or dismissal and re-engagement in a changing terms process will now be caught by statutory collective consultation obligations where they might previously have considered themselves free from such obligations.

The EAT’s decision turns on its belief that Employment Tribunals should adopt a purposive approach to the construction of s188 of Trade Union and Labour Relations (Consolidation) Act 1992, so as to give effect to the EU Directive on Collective Redundancy. In doing so, the EAT states that Tribunals must effectively delete the words “at one establishment” from the current wording of s188 which states ‘Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals…’ From now on, employers will have to take into account proposed redundancies at all their sites when they are considering if their statutory collective redundancy consultation obligations are triggered, and if they are, if a 30 day or 45 day consultation period is required.

This is clearly a very controversial decision and although there has been no indication as to whether there will be an appeal - we will watch with interest and keep you updated.

We will be considering the practical impact of this case in more detail at our Autumn Member Briefings, along with some other recent cases that impact on the redundancy process.

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