Govt tries to appeal EAT decision on Usdaw vs Woolworths that found in favour of union

24 July 2013

The Department for Business, Innovation and Skills (BIS) is attempting to appeal an Employment Appeals Tribunal (EAT) decision that sided with the argument of the trade union involved.

On 02 July 2013, the EAT said the words “at one establishment” should be removed from the law on collective redundancy, which obliges employers to consult with unions and worker representatives if more than 20 employees are to be made redundant.

Woolworths had consulted only on branches that employed 20 or more staff, and these employees had received protective award claims. This left thousands of workers ineligible for any kind of award because they were employed in smaller branches. Usdaw argued that Woolworths should have consulted with all of its workers regardless of the size of the store in which they were employed, as the company was engaged in a mass redundancy of all of its staff in all branches following insolvency.

Judge Jeremy McMullen agreed with this stance and said the wording of the law should be ignored when it comes to the “at one establishment” clause. This is an enormous win for unions, who may now be able to take on cases of mass redundancy from over the last three months and into the future and gain protected pay awards for a much larger proportion of affected workers.

But this has scared the BIS and, although it was pointed out by Judge McMullen that no representatives of the department attended any of the relevant hearings, a BIS spokesperson told Personnel Today: “We have applied for permission to appeal and are waiting for a decision. The reason for appealing this judgment is that in reaching its decision we think the EAT has got the law wrong and it is our view that the decision will have wider implications.”

This seems to be something of a U-turn by the government, which perhaps was expecting a different outcome to the EAT. Judge McMullen said in his judgement transcript: “It was said by the Insolvency Service that the secretary of state would not attend or comment ‘as he has nothing to usefully contribute about the consultation process between the parties’. That was his stance at the Woolworths employment tribunal hearing.”