USDAW & Anor v UNITE The Union & Ors (Redundancy : Collective consultation and information)

Where the United Kingdom chose the 90-day threshold in article 1(1)(a)(ii) of Directive 98/59/EC, the duty to consult is triggered by a proposal to dismiss 20 or more employees as redundant. It is not confined to 20 dismissals at a single site.

Section 188(1) of Trade Union and Labour Relations (Consolidation) Act 1992 must, so far as possible, be construed consistently with that Directive. The words “at one establishment” are to be deleted. That construction gives effect to the Directive’s worker-protection purpose and accords with the legislative scheme, whose purpose was to implement the Directive rather than restrict its protection.

Two Employment Tribunals found that Ethel Austin Ltd and Woolworths had failed to consult properly about collective redundancies and made protective awards. They excluded employees dismissed at establishments where fewer than 20 employees were dismissed.

USDAW and Mrs Wilson appealed against that exclusion. The employers were insolvent and unrepresented. The central issue was whether section 188(1) of Trade Union and Labour Relations (Consolidation) Act 1992 required 20 proposed dismissals at one establishment, or whether the 20-dismissal threshold applied across the employer’s establishments.

1. Appeals allowed. The Employment Tribunals erred by excluding employees dismissed at sites at which fewer than 20 employees were dismissed. Their orders were set aside to that extent.

2. Article 1(1)(a)(ii) of Directive 98/59/EC provides a simple 90-day threshold: at least 20 redundancies, whatever the number of workers normally employed in the establishments concerned. Unlike article 1(1)(a)(i), it neither requires an assessment of the size of an existing workforce nor makes the location of employees relevant. The Directive’s purpose is to protect workers affected by collective redundancies.

3. Section 188(1) of Trade Union and Labour Relations (Consolidation) Act 1992 was enacted to implement that obligation. The legislative materials showed no parliamentary policy to restrict protection to dismissals concentrated at one site. A site-based construction would substantially dilute the protection which the Directive requires.

4. Applying the conforming-interpretation principles explained in Ghaidan, EBR Attridge and Marleasing, the court could adopt a construction that changed the literal effect of the provision where it remained compatible with the legislation’s underlying thrust. The words “at one establishment” in section 188(1) were therefore deleted as a matter of construction.

5. The court stated alternative grounds only tentatively. It would have construed each retail business as one establishment if necessary, and it considered that a literal alternative might also have produced the same result once the threshold had been met at one establishment. It also expressed tentative views on EU-law rights and direct effect, but these were unnecessary to the decision.

6. No reference to the Court of Justice was necessary. Time was given for orders to be drawn.

• Employment Appeal Tribunal: Allowed the claimants’ appeals and set aside the exclusion from protective awards of employees dismissed at establishments where fewer than 20 employees were dismissed.
• Employment Tribunals: Made protective awards of 90 days in the Ethel Austin proceedings and 60 days in the Woolworths proceedings, but excluded employees at establishments with fewer than 20 dismissals.