Case update (1): Collective consultation – an update

What do we already know?

In our recent Newsflash Important changes to collective consultation we let you know that employers must now consult collectively whenever the planned redundancies or changes to terms and conditions add up to 20+ across the whole of the UK business, according to the decision of the EAT in USDAW v Woolworths.

On the other hand, we also commented that this judgment sits very badly with the well-established body of case law on this subject, which looks at individual ‘establishments’, so it is possible that the new judgment might be overturned in the Court of Appeal or contradicted by another EAT judgment in a future case.

What’s new?

The news is that the Government has requested permission to appeal the Woolworths judgment to the Court of Appeal.  A spokesman for the Government commented that “in reaching its decision we think the EAT has got the law wrong and it is our view that the decision will have wider implications.”

In the judgment, HH Judge McMullen pointed out that the Government did not attend any of the proceedings and commented that it had appeared “sadly, to misunderstand the legal issue in these appeals and its importance.” 

If the Government had been expecting the EAT to refer the case to the ECJ then HH Judge McMullen surprised it by not doing so. The fact that the Government has now belatedly decided to get involved in the case suggests that it realises its great significance to employers.

In the meantime, if and until the decision is overturned by the Court of Appeal, the Woolworths judgment remains the law and it should be followed.   This means that, as above, employers should consult collectively whenever the planned redundancies or changes to T&C add up to 20+ across the whole of the UK business.

For now, employers should not try to avoid a trigger of the collective consultation rule just by distributing their employees throughout different sites across the UK. This will certainly mean more administration and more risk for larger UK employers – both in terms of the co-ordination required to ensure the collective consultation trigger is not missed, and also the fact that collective redundancy consultation will be required more frequently.

However, this state of affairs may not last for long and we’ll be sure to update you if and when this changes…