Collective consultation – an update

What do we already know?

We updated you in our May 2015 Newsletter Case update (1): Collective consultation – big decision time on the Woolworths case (USDAW and another v WW Realisation 1 Ltd (in liquidation) and others) and that the CJEU had confirmed that collective consultation is not triggered whenever planned redundancies, or changes to terms and conditions add up to 20 or more across the whole of the UK business. Instead the trigger is at least 20 employees from a particular “establishment” within a period of 90 days.

The CJEU stated that the term “establishment” must be interpreted as meaning the unit to which the workers made redundant (or subject to changes to terms and conditions) are assigned to carry out their duties. This will normally be just a part of the overall organisation. It is not essential that the unit in question has a management that can independently affect collective redundancies.

Deciding what the establishment is will depend on the facts.

What’s new?

The Woolworth’s case has now come back to the UK and the Court of Appeal has given its final say on this case in the light of the CJEU ruling. The Court of Appeal has confirmed that the UK position is consistent with the CJEU ruling and that therefore collective consultation, or changes to terms and conditions, is triggered when numbers reach 20 or more redundancies within a 90-day period at the particular site or location where an employee carries out their work.

In terms of the particular facts of this case, as expected, the Court held that each Woolworths store was indeed a separate “establishment”.

No hearing actually took place in the Court of Appeal but rather the matter was dealt with by consent of the parties to the case.