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ARTICLE · 22 DECEMBER 2010

Redundancy - Consultation

Bird & Bird
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In the recent case of "USA v Nolan" the Court of Appeal has asked the European Court of Justice (ECJ) to clarify the terms of the EU Directive that requires employers to consult with the workforce 'in good time' when contemplating collective redundancies.

United KingdomEmployment and HR
Bird & Bird'S Labour & Employment Group
Bird & Bird'S Labour & Employment Group

Starting Date for Collective Consultation

In the recent case of USA v Nolan the Court of Appeal has asked the European Court of Justice (ECJ) to clarify the terms of the EU Directive that requires employers to consult with the workforce 'in good time' when contemplating collective redundancies.

The question is whether it is necessary for the employer to consult about the strategic business decision that may lead to redundancies (e.g. the reason for closure of a particular workplace) or whether the obligation to consult only arises once that decision has been taken and redundancies are inevitable, so that there can be no consultation about the decision itself.

The decision in the leading case of UK Coal Mining is clear that 'where closure and dismissals are inextricably intertwined, the duty to consult over the reasons [for the closure] arises.'

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