USDAW v WW Realisation Limited and Secretary of State for Business, Innovation and Skills; USDAW v Ethel Austin Limited

The EAT has today allowed appeals brought by the Union of Shop, Distributive and Allied Workers (USDAW) against two employment tribunal decisions concerning the scope of the statutory duty to consult employees’ representatives in respect of proposed collective redundancies.

The claims arose following the insolvency of the high street chains Woolworths and Ethel Austin. Protective awards worth millions of pounds were made to employees for failure to consult. However, around 4,500 employees were denied a protective award by the employment tribunals on the basis that they worked at stores with fewer than 20 employees.

The EAT accepted USDAW’s argument that, in order to read section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 compatibly with the European Collective Redundancies Directive, it was necessary to disapply the words “at one establishment” in section 188. The result is that the statutory duty to consult applies whenever an employer is proposing to dismiss as redundant 20 or more employees within a period of 90 days or less, regardless of the particular establishments at which they work.

The decision extends the protection of domestic law considerably and will have significant ramifications for a wide range of employers and employees.

Dinah Rose QC and Iain Steele, instructed by Slater & Gordon, acted for USDAW.