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All Change: Collective Consultation and the “Woolworths” Decision
Regular readers will remember that when Woolworths and Ethel Austin ceased trading, claims had been made that the employers had not engaged in collective consultation in those branches with fewer than 20 employees and that the UK’s interpretation of the EU legislation was correct. The claim had been that because more than 20 people in total were being made redundant, all the employees should have been encompassed in any collective consultation, not just those in the larger stores.

The European Court of Justice (EJC) has handed down its judgment in the Woolworths and Ethel Austin cases and the court's official summary is:
The ECJ held that 'establishment', in the collective redundancy legislation, refers to an individual workplace (or, more accurately, the entity to which the workers made redundant are assigned to carry out their duties), not to the employer as a whole.

So when establishing headcount to see whether an employer needs to engage in collective consultation (required when contemplating 20 or more redundancies in a period of 90 days), Woolworths was right to count each store as a separate 'establishment'. This, in turn, meant that it did not need to engage in collective consultation with staff who worked in a store with a headcount of less than 20. It means that those employees from the smaller stores who had sought payment of a protective award are now very unlikely to receive one.

The ECJ has formally referred the case back to the Court of Appeal, but the Court of Appeal's decision is now likely to be a formality and will reverse the decision of the Employment Appeal Tribunal ruling of 2013.
Posted on 19 Nov 2016


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