John Hendy on Woolworths decision: the UK failed to implement EU law

25 July 2013

Chair of the Institute of Employment Rights and go-to lawyer for the trade union movement John Hendy QC has explained that the Employment Appeals Tribunal (EAT) decision on the Woolworths collective redundancy process brings UK law in line with the EU Directive it should have been following all along.

The Department for Business, Innovation and Skills (BIS) has announced it will appeal the EAT judgement, which found in favour of union Usdaw. Judge Jeremy McMullen said the phrase “at one establishment” should be removed from the Trade Union and Labour Relations (Consolidation) Act 1992. Previously, employers were required to hold a 90-day consultation where 20 or more workers were being made redundant “at one establishment”. This consultation period was halved to 45 days in April 2013 following law changes by the Coalition Government.

Following its insolvency, Woolworths paid payment protection awards to only those staff based at its larger branches – those at which 20 or more people were unemployed – arguing that the remaining employees were not protected under the law. Following the removal of “at one establishment” by Judge McMullen, such arguments will not be possible and all workers involved in a mass redundancy will be given the same rights. This has enraged employers and the government.

However, John Hendy QC states that the Judge’s decision was absolutely correct and in line with international law, as the UK failed to transpose the EU Directive of Collective Redundancy in the first place.

“The EAT have held that UK failed properly to implement the EU Directive on Collective Redundancies. The UK legislation prescribed consultation of 90 days where an employer proposed to shed 20 or more employees at any one establishment. In contrast, the Directive requires 90 days consultation where the proposal is to shed 20 or more employees ‘whatever the number of workers in the establishments in question'”.

“In short the EAT have held that an employer must add together the number of employees facing redundancy across all the employer’s establishments. If they are 20 or more it does not matter whether they work at one site or are spread across several. The EAT found that this was consistent with the purpose of the Directive, which is to protect workers.”

“Employers are complaining that the ruling increases the burden on employers, but lessening the burden on employers was never the purpose of the Directive. Indeed, the protection of workers, whether against unemployment through redundancy or in relation to health and safety or against discrimination, will always place burdens on employers to regulate what would otherwise be their unfettered power to sack, to injure and kill and to discriminate”.