Collective consultation and the meaning of establishment: hints of a surprising decision from the EAT

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There have been a number of stories circulating in the legal press during the past week that suggest we face a significant change in the law concerning collective redundancy consultation.

Although yet to be formally confirmed by the Employment Appeal Tribunal (EAT) — the judgment is expected imminently — it is being reported that the EAT has overturned the Employment Tribunal decision in the Woolworths collective redundancy consultation claims (USDAW and others v WW Realisation 1 Ltd [in liquidation] and another ET/3201156/10).

In those cases concerning the mass redundancies that followed the collapse of the retailer Woolworths, the Employment Tribunal decision meant that employees who worked in stores that employed fewer than 20 employees would not receive any compensation for a failure to collectively consult. This was because the obligation to collectively consult under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) applies where an employer is proposing to dismiss as redundant 20 or more employees at one establishmentwithin a period of 90 days or less. The Employment Tribunal ruled that each store was a separate ‘establishment’, meaning that stores employing fewer than 20 employees were not caught by the obligation to collectively consult…

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