Court of Appeal Refer Woolies Case to Europe

The Court of Appeal have today referred the Government’s Appeal from the EAT decision in USDAW v Ethel Austin Limited (In Administration) and USDAW v WW Realisation1 Limited and Others (the so-called Woolies case) to the European Court (CJEU).

The EAT decision can be found here.

My original blog on the issue can be found here.

The issue in the case is whether the EAT were correct to delete the words “at one establishment” from S.188 of the 1992 Act so, an employer is obliged to consult the recognised trade union of elected workplace representatives whenever they propose to make 20 or more persons redundant wherever they are employed.  The EAT accepted the argument that the wording of S.188 was not consistent with the wording of the Directive.  To give effect to the wording of the Directive, the EAT said S.188 must be read ignoring those words.

Embarrassingly the Government did not turn up at the EAT hearing despite being invited and were only granted leave to appeal to the Court of Appeal on condition that they bore all the appeal costs for both sides.

The CJEU are already considering a referral on a similar issue by the Northern Ireland Industrial Tribunal in a case called Lyttle and Others arising out of the transfer of Bon Marche stores to Bluebird UK Bidco 2 Limited and the subsequent redundancy of a number of employees as many stores were closed.  That decision is here.

I understand that the Court of Appeal have referred 2 issues to the CJEU:-

1. Interpretation of the term “establishment”;

2. Does the Directive have direct effect against the Secretary of State against whom the claim is effectively brought as Woolworths (and Ethel Austin) are insolvent.

The Court of appeal has asked for the referral to be heard at the same time as Lyttle and to be expedited.

I will blog again when the court of Appeal decision is published and there is any news on when the CJEU is to hear the referral.  In the meantime I suggest union officers continue lodging tribunal claims where employers do not consult and there are proposals to make 20 or more employees redundant within 90 days or less anywhere in the country.