Regular readers will be aware of this long-running case about when the requirement to consult with employee representatives starts - at the time redundancies are proposed or at the point when a decision is being made to effect redundancies. In 2006 the United States of America closed a watercraft repair centre based in Hampshire. Mrs Nolan was employed at the Base by the appellant and was dismissed for redundancy the day before it closed. Mrs Nolan complained that the appellant had failed to consult with any employee representative when proposing to dismiss her. 

Mrs Nolan's complaint was that the appellant as her employer, when proposing to dismiss her and other employees, had failed to consult with any employee representative as required by the procedure for handling collective redundancies prescribed by the appropriate GB legislation on collective redundancy consultation requirements (Trade Union and Labour Relations (Consolidation) Act 1992). 

There was no trade union at the base to represent Mrs Nolan's and other employees' interests. Accordingly, she made her complaint on the basis that she was an "employee representative". The appellant accepted that it had been made clear that there would be neither discussions nor consultation about the forthcoming closure. The appellant denied any such duty and did not rely on state immunity when the proceedings commenced. On the basis of TULR(C)A, Mrs Nolan succeeded before the Employment Tribunal and was granted an order for remuneration for a one month period. This Employment Appeal Tribunal upheld the order and the case was referred to the Court of Appeal for England & Wales.

The Court of Appeal referred to the Court of Justice the question whether the obligation to consult arose on a proposal or only on a decision to close the base (aka the "UK Coal Mining" and "Fujitsu" issue: see previous emails for discussion). The Court of Justice declined jurisdiction, holding that it was not appropriate to rule on a question relating to a public administrative establishment to which the Council Directive 77/187/EEC ('Collective Redundancies Consultation' Directive) did not apply. 

The Court of Appeal ordered a further hearing of the UK Coal Mining/Fujitsu issues. The appellant subsequently appealed to the Supreme Court on various grounds, including that TULR(C)A did not apply to the actions of a foreign state and the amending domestic legislation was ultra vires because it extended consultation obligation to public administrative bodies or public law establishments, something that is not covered by the EU Directive. 

This week, the Supreme Court dismissed the USA's appeal, largely on the ground that the domestic legislation was clear and extended the reach of consultation requirements before the adoption of the EU Directive, (the Supreme Court found TULR(C)A represented a "unified domestic regime", which Parliament chose not to change at the time of the adoption of the EU Directive) and the case has now been remitted to the Court of Appeal for determination of the UK Coal/Fujitsu issues on when the requirement to consult with employee representatives actually starts. 
http://www.bailii.org/uk/cases/UKSC/2015/63.html