Do you remember the Woolies redundancy case? As a quick recap, Woolies treated each of its stores as a separate establishment and as a result it did not count all employees affected by redundancy as one group and this impacted on their obligations to consult collectively. This was challenged by the unions and the Employment Appeal Tribunal agreed, stating that where 20 or more redundancies in a single company were proposed in a 90 day period, the employees’ place of work was irrelevant for the purposes of collective consultation obligations.
However, the Court of Appeal has referred the question to the European Courts, and, pending the hearing that will take place in the summer, the Attorney General has given his initial view. (Note that this initial view is not binding on the court, so it might be that his opinion is ignored!) He has said that:
“…that directive does not require — nor does it preclude — aggregating the number of dismissals in all the employer’s establishments for the purposes of verifying whether the thresholds set in Article 1(1)(a) are met…” and noted that ‘…It is for the Member States to decide, where appropriate, to increase the level of protection… …provided that, on every occasion … it would be more favourable to the workers made redundant…”.
In other words, it is up to the English law courts to decide whether there is a need to look at all employees, or whether they can be looked at in terms of different sites, being different establishments. Whilst this could be good news for employers with multiple sites, there is of course the caveat that whichever way it is looked at, it must be what is most favourable to the employees.
So will this make a difference if the ECJ agrees with the Advocate General? We’ll have to wait and see what the judgment looks like. In the meantime, our advice is that you do still treat all business locations as one establishment.