Location, location, location… is entirely irrelevant in collective redundancy

Walker Morris now has the Employment Appeal Tribunal’s (EAT’s) written decision in the case of USDAW & Ors v WW Realisation 1 Ltd and another (commonly known as the ‘Woolworths case’).

The appeal to the EAT was against the employment tribunal’s finding that each store was a separate establishment and, as such, the duty to collectively consult was not triggered in respect of those stores employing fewer than 20 staff. The EAT’s written reasons confirm without any doubt that the words ‘at one establishment’ in the Trade Union and Labour Relations Consolidation Act (TULRCA) 1992 are to be disregarded so that once it is proposed that 20 or more employees in a single employer are to be made redundant, their location is entirely irrelevant.

The EAT found that the wording ‘at one establishment’ in TULRCA is incompatible with the European Collective Redundancies Directive (which does not contain the ‘one establishment’ wording). This discrepancy has been recognised by the courts for several years but, until now, the EAT has not considered it possible to construe the domestic legislation purposively to comply with the directive. In this case, the EAT carried out a detailed analysis of previous case law on the issue of how the UK courts should interpret domestic legislation where it conflicts with European law together with an analysis of parliamentary intentions when TULRCA was enacted and subsequently amended. On this basis, the EAT found that it could construe TULRCA (specifically section 188) in accordance with the directive…

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