The statutory duty to collectively consult in redundancy situations

A recent Employment Appeal Tribunal judgment may make important changes to statutory consultation rules, report Gareth Edwards and Allison Cook.

Readers should be aware of the yet unpublished decision of the EAT in the case of USDAW and others v WW Realisation 1 Ltd (in liquidation) combined with USDAW v Ethel Austin Ltd (in administration). This case appears to have a significant impact on the statutory duty to collectively consult in redundancy situations.

Previously, where an employer was proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, it had to collectively consult with employee representatives and failure to do so could give rise to claims for a 'protective award'. The EAT in the USDAW case appears to have removed the requirement for the redundancies to be at "one establishment".  If this proves to be correct, the statutory requirements will be triggered where 20 or more redundancies are proposed across a business as a whole.

The case was pursued by USDAW on behalf of around 4,500 employees of the high street chains Woolworths and Ethel Austin. Woolworths and Ethel Austin failed to comply with the duty to collectively consult, and these employees were denied a protective award because they worked at shops that employed less than 20 employees. The original tribunal had held that each shop was an "establishment" but this appears to have been overturned.

According to the press release from the solicitors acting for USDAW, the EAT has ruled that "the words at one establishment are here and after to be disregarded for the purposes of any collective redundancy involving more than 20 employees, meaning that once it is proposed that more than 20 employees in a single business are to be made redundant, their location becomes irrelevant".

If this is correct, this significantly extends the requirement to collectively consult and will have implications for redundancies across multiple sites.

Gareth Edwards is a partner and Allison Cook is a senior associate at Veale Wasbrough Vizards. Gareth can be contacted on 0117 314 5220 or by This email address is being protected from spambots. You need JavaScript enabled to view it., while Allison can be reached on 0117 314 5466 or by This email address is being protected from spambots. You need JavaScript enabled to view it..