New CJEU ruling on what triggers collective redundancy requirements.
The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) governs when collective redundancy consultations arise in circumstances where an employer is proposing to dismiss on redundancy 20 or more employees at any one establishment in a 90-day period.
Collective consultation requires those employees affected to appoint their staff representative who liaises with the employer via a consultation process and where 20 to 99 dismissals are being proposed, the consultation period is 30 days and where 100 plus dismissals are being proposed it is 45 days.
To avoid being subject to fines and penalties, the employer must also notify the Secretary of State about the proposed dismissals using the HR1 form -see (1)
Under section 188 (3) of (TULRCA), when there is already collective redundancy consultation taking place, if there is a further round of redundancies then that is taken in isolation to the first round. As long as there is no evidence of improper conduct on part of employer, i.e., say employer begins collective consultation in respect of 35 potential redundancy dismissals in October but then after a few weeks proposes to make another 15 employees redundant then although both fall within 90 day period but the later 15 do not fall within collective consultation as employer already started consultation for the first 35.
Court of Justice
The above understanding has been bought into uncertainty by the case of UQ v Marclean Technologies SLU ( C-300/19), where the Court of Justice of the European Union ( CJEU) have ruled that employers have to look either side of an individual dismissals on a rolling basis to identify the relevant reference period ie a rolling 90-day period spanning either side of the dismissal and if the threshold number of redundancy dismissals is reached at any point across the 90-day reference period, collective consultation would be triggered.
The CJEU decision comes before 31 December 2020 when UK will cease to be bound by EU law.
Some EU law will cease to apply in the UK, however a fair proportion of EU law will continue to apply in amended or unamended form and decisions of CJEU, including decisions at the first instance level by the General Court of the CJEU, will be binding on UK courts and tribunals up until completion day hence the significance of the above decision by CJEU.
Also, UK courts will still continue to consider issues of EU law in cases where the UK courts are asked to consider the correct interpretation or application of retained EU law.
Where employers are considering staggered redundancies the above findings now places obligations on employers to ensure that over a 90 day period the collective redundancy procedure is not triggered. A breach of the collective consultation obligations would mean that employers could face protective award claims of up to 90 days’ gross actual pay per affected employee, although a lesser amount would be awarded if the employer had engaged in some, but not an adequate level of consultation with its employees.
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