Newsflash: Collective consultation – an update

What do we already know?

In our July 2013 Newsflash Important changes to collective consultation we told you about the case of USDAW v Woolworths.

We let you know that, controversially, the EAT in this case decided that employers should consult collectively whenever planned redundancies, or changes to terms and conditions add up to 20+ across the whole of the UK business.

Following that decision the Government appealed to the Court of Appeal. The Government echoed the common feeling 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.”

What’s new?

The news is that the Court of Appeal has referred the case to the CJEU (formerly known as the ECJ).

In the hearing on 22 January 2014 the Court of Appeal decided that the wording of the questions to be referred should be agreed between the parties and to seek a hearing by the CJEU with speed.

Comment:

This means that the current state of uncertainty will remain for the time being.

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 certainly means continued increased 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, once we have a decision from the CJEU we’ll be sure to update you…