In these combined appeals the EAT found that section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 failed to correctly implement the EU Collective Redundancies Directive (No.98/59).

The cases concerned the wording of section 188(1) of the 1992 Act, which reads: “188(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.”

If an employer fails to consult in line with s188 he will have to make a protective award and such awards are within the scope of debts guaranteed by the Secretary of State. The EAT had to consider whether the words “20 or more employees at one establishment” could mean that the duty to consult could apply where an employer is making 20 or more employees redundant at different locations.

The Claimants were made redundant from Ethel Austin and Woolworths after the companies went into administration and then liquidation, but they received no protective award under the 1992 Act as they were employed in stores where less than 20 people were made redundant. The EAT considered that a purposive approach should be adopted to give effect to the Directive and so the court should delete the words “at one establishment” in s188 thereby extending the consultation requirement and allowing protective awards to be made in favour of the Claimants.

The same query was raised in the recent Northern Irish case Lyttle & Ors v Bluebird UK Bidco 2 Limited (http://www.bailii.org/nie/cases/NIIT/2013/555_12IT.html), which considered the equivalent Northern Irish provision, Article 216 of the Employment Rights (NI) Order 1996. The NI Tribunal expressed the view that the 20 employee per establishment threshold may well be incompatible with the requirements of the Directive and referred it to the European Court for a ruling. Although EAT rulings in England are non binding in Northern Ireland, it is likely a Tribunal would now follow Usdaw. http://bit.ly/12CuAS6