Advocate General Wahl has given his opinion in the now-joined cases above, commonly known as the 'Woolworths' or 'Ethel Austin' cases, although they concern a GB case, a Northern Ireland case and a Spanish case. All concerned the meaning of establishment in relation to collective redundancy consultation requirements as derived from the EU Collective Redundancies Directive (No.98/59).
The impact of this case could have been profound - and might still be when it moves to the full CJEU for a decision. The case involved mass redundancies at fairly specific points in time but each of the 'establishments' at which the employees worked (shops in the case of Woolworths) may have had fewer than 20 employees before they closed. If the shops were collectively deemed to be one 'establishment' then many more than 20 employees would have been made redundant and collective consultation requirements would have been triggered before the employees could have been dismissed and the employees would be entitled to protective awards for the employers' failure to consult with elected representatives, USDAW in the case of Woolworths.
The AG's opinion is that the UK laws have not incorrectly implemented the Directive i.e. units should not generally be aggregated, although it is for the national courts to determine what an establishment is in any particular case:
"The concept of ‘establishment’ as referred to in Article 1(1)(a)(ii) of Council Directive 98/59/EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective dismissals has the same meaning as under Article 1(1)(a)(i) of that directive. That concept denotes the unit to which the workers made redundant are assigned to carry out their duties, which it is for the national court to determine."
This presumably means that some establishments will consist of more than unit because workers may be assigned to carry out their duties at more than one unit.
Also of interest to UK and Irish workplaces is the opinion that the termination of fixed term contracts at their expiry should not be added to the number required for the threshold for collective redundancy consultation requirements to be triggered:
"On a proper construction of Article 1(2)(a) of Directive 98/59, all collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks are excluded from the scope of that directive, save where such redundancies take place prior to the date of expiry of such contracts or before their completion. It is irrelevant whether the grounds for the termination of such contracts are the same..."
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