worth a read if you work for a company that has a few small depots. It appears that if you are made redundant in these circumstances that the right to the usual negotiations is different as each depot is treated as individual even if they don’t have seperate management…
Collective Redundancies: ECJ decides on “establishment” point
The ECJ has given its judgment in the case of USDAW and another v WW Realisation 1 Ltd (In Liquidation), Ethel Austin and another, which is the latest instalment in the longstanding claims following the administration of Woolworths and Ethel Austin.
Readers may recall that Woolworths entered into administration in November 2008 and Ethel Austin in March 2010, which resulted in thousands of employees being made redundant. Employment Tribunal claims were brought for a protective award for the employers’ failure to consult about the redundancies, but the Employment Tribunal only made awards for those employees who worked in stores with 20 or more employees, as they treated each store as one ‘establishment’. This meant that approximately 4,400 employees did not receive a protective award. The decision was appealed to the EAT, who overturned the decision, holding that the duty to consult over collective redundancies arises where 20 or more employees are to be dismissed irrespective of where they work. This decision was then appealed to the Court of Appeal, who referred the question as to the meaning of ‘establishment’ to the ECJ.
The ECJ has held that the European Collective Redundancies Directive does not require that the number of dismissals in all of an employer’s establishments be aggregated in order to determine whether the threshold for collective redundancy is met. More importantly, the ECJ gave consideration to the definition of ‘establishment’. It held that ‘establishment’ is the local unit or entity to which the redundant workers are assigned to carry out their duties. It is not essential that the unit or entity has its own management which can independently effect collective redundancies. The ECJ further held that there is a distinction between the terms ‘establishment’ and ‘undertaking’, and an establishment normally constitutes part of an undertaking. Where there are several ‘entities’ making up an undertaking, it is the entity to which the redundant employees are assigned to carry out their duties that constitutes the establishment.
The claim will now be considered by the Court of Appeal to determine what amounts to an establishment in this case in light of the ECJ’s decision, but it seems clear that the Claimants will now fail.
This is a particularly disappointing decision. It represents a departure from the ECJ’s historic approach, of interpreting Directives purposively to achieve greater worker protection. The ECJ decision in Rockfon used smaller, local “establishments” precisely because the law of the relevant member state in that case meant that more employees were protected by this interpretation. Under the guise of “consistency” the Court now applies the same test to a wholly different set of laws, and thousands of employees lose out.
A cynic might think that the ECJ is bending over backwards to avoid upsetting the powers that be in the less pro-EU member states
IE no surprise the idea of workers of the world unite doesn’t seem to be working. 