In USDAW v Ethel Austin Ltd (in administration) and another case the EAT has granted the Secretary of State for Business, Innovation and Skills permission to appeal against its decision (Brief 977) that the words ‘at one establishment’ in S.188 of the Trade Union and Labour Relations (Consolidation) Act 1992 must be deleted to ensure compliance with the EU Collective Redundancies Directive (No.98/59).
The Secretary of State had not previously appeared before the EAT as he had not appreciated the decision’s ‘wide importance’.
As a result of the EAT’s decision, the duty to consult about collective redundancies is not restricted to situations where 20 or more dismissals within 90 days are proposed ‘at one establishment’.
Therefore, whenever 20 redundancies are proposed in total within 90 days, anywhere in the employer’s business – even if they are all at different locations – the employer will have to observe the statutory information and consultation obligations. Although the Secretary of State had not been represented at the tribunal in a case involving the retail chain Woolworths, to which he was a party, or at the EAT, he made an application to appeal against the EAT’s judgment. The Secretary of State apologised to the EAT for his failure to participate in the case at an earlier stage. Before the EAT handed down its judgment he had not appreciated that ‘the issues raised by this appeal are of wide importance – far beyond the facts of these particular appeals’.
In considering whether to grant permission to appeal the EAT noted that in Lyttle v Bluebird UK Bidco Ltd (Brief 979), a case with similar facts, a Northern Irish Industrial tribunal had made a reference to the ECJ on the correct interpretation of the Directive on this matter. The EAT considered it relevant that the ECJ is now seised of an issue which is potentially determinative of the case. Furthermore, there was no doubt that the EAT’s judgment had made a substantial change in the law, which it is in the interests of all to clarify as soon as possible. The EAT therefore granted permission to appeal, but on condition that the Secretary of State reinforce his offer of indemnifying the claimants against an award in his favour and that he pay the reasonable costs of the claimants in responding to the appeal in the Court of Appeal, on the standard basis. The EAT decided to apply such a condition due to the ‘unique’ circumstances of the case, which include the Secretary of State failing to appear in the tribunal or EAT despite being a party to the Woolworths case.