The Court of Appeal has ruled that domestic legislation in relation to consultation requirements cannot be read as excluding any matters not contained within the Collective Redundancies Directive. In this case, the closure of a US air base caused redundancies and let to a failure to consult claim on behalf of affected employees, including Mrs Nolan. The US specifically waived diplomatic immunity in their arguments before the tribunal and subsequent courts.

This case went to the CJEU on the big question of WHEN does an employer have to consult, known in legal circles as the Fujitsu issue:

"Does the employer’s obligation to consult about collective redundancies, pursuant to Directive 98/59, arise (i) when the employer is proposing, but has not yet made, a strategic business or operational decision that will foreseeably or inevitably lead to collective redundancies; or (ii) only when that decision has actually been made and he is then proposing consequential redundancies?"

Unfortunately, the CJEU reckoned it does not have jurisdiction to consider the question because Article 1(2)(b) of Collective Redundancies Directive 98/59 excludes application of the Directive to workers employed by public administrative bodies or by establishments governed by public law or, in Member States where that concept is unknown, by equivalent bodies.

Back to the Court of Appeal it went and it has not answered the important question it referred to the CJEU. Instead, it has considered whether, in effect, the diplomatic immunity should be read into domestic legislation (because it might otherwise be seen to impose obligations not required by the Directive) and the Court has concluded it should not. The US should have used the diplomatic immunity argument at the time of the original failure to consult claim instead of waiving its right to immunity - the tribunal wouldn't have been able to hear the claim in the first place.

A further hearing will be required to determine the Fujitsu issue:
http://bit.ly/N8WjGs

Practical lessons from this decision

We will have to wait to get the answer on WHEN collective redundancy consultation should start.