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Case update (2): More collective consultation

The Rejected OneFollowing the above CJEU decision in the “Woolworths” case, that Court has also considered two further decisions relating to collective consultation in the context of redundancy.

1. Lyttle v Bluebird available here.

Summary: Is a single retail store capable of being an “establishment” for collective redundancy consultation purposes?

Yes, held the CJEU. This decision was in response to a reference from a Northern Ireland Industrial Tribunal, arising from the closure of some Bonmarché retail outlets across the UK in 2012.

Facts: The issues in this case were essentially the same as that considered in the “Woolworths” case, namely whether the word “establishment” in the EU Directive means the local unit of a business or the business as a whole. While not specifically referring to its earlier judgment in the “Woolworths” case, the CJEU clearly took the same approach, holding that “establishment” is the local unit or entity to which the redundant workers are assigned to carry out their duties.

Therefore, the Northern Irish equivalent to section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A), under which collective consultation obligations are triggered by 20 or more dismissals “at one establishment” within a period of 90 days or less, properly implements the EU directive.

Implications: Further reassurance for employers and indication that the CJEU will act consistently in its interpretation of the meaning of “establishment” and that UK legislation properly implements EU law. Further confirmation that collective consultation is triggered whenever planned redundancies, or changes to terms and conditions add up to at least 20 employees from a particular “establishment” within a period of 90 days, rather than 20 or more across the whole of the UK business.

2. Cañas v Nexea Gestión Documental SA and another available here.

Although this case also involved the same issue, namely when collective consultation in redundancy situations is required, this decision is less relevant to the UK. This is because the CJEU was required to consider the meaning of “undertaking”, and not “establishment”, since that is the word used in the context of collective consultation obligations in Spanish legislation. However, the decision made by the CJEU reflected similar approach to the law taken in the Woolworths and Lyttle v Bluebird cases.

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