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Meaning of establishment and collective redundancy consultation

View profile for Kate Fretten
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The Woolworths saga (which we have reported on several occasions before) continues and has taken another dramatic, but not yet decisive twist this month.

The European Court of Justice’s Advocate General has said the EU Collective Redundancies Directive does not require that the number of employees dismissed across an employer’s various establishments be aggregated to see if the thresholds for protection under the Directive are met.

Kate Fretten Employment Partner says, “This is a preliminary opinion after the case was referred to the ECJ from the Court of Appeal along with the Northern Irish industrial tribunal case of Lyttle v Bluebird and a Spanish case, Cañas v Nexea.” The Court of Appeal referred two questions from the ‘Woolworths’ case, the first whether the phrase in the Directive ‘at least 20’ dismissals referred to dismissals over the employer’s establishments, or the number in each establishment, and if it did refer to each establishment, what was meant by ‘establishment’?

The Advocate General said ‘…that directive does not require — nor does it preclude — aggregating the number of dismissals in all the employer’s establishments for the purposes of verifying whether the thresholds … are met…” and noted that ‘…It is for the Member States to decide, where appropriate, to increase the level of protection… …provided that, on every occasion … it would be more favourable to the workers made redundant…’.

Comment

The Advocate General’s opinion is the exact opposite to that which many commentators expected. However, it is not binding on the full ECJ, which should rule on the matter later this year. If they do agree with the Advocate General it will be good news for employers as it will mean that they will only have to be proposing to make redundant 20 or more employees in one location in order for the collective consultation requirements to bite and not aggregate the numbers across all locations. It will not, of course, be good news for the ex-Woolworths’ employees.

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.

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