We report on the latest instalment of the saga of the meaning of “establishment” in the UK’s collective redundancies legislation.
In the latest episode of this saga, the ECJ has agreed with the Advocate General that “establishment” need not refer to all of an employer’s establishments aggregated together, but can refer to a local unit or entity to which the redundant workers are assigned to carry out their duties.
Thus, in the case of Woolworths, each branch should be looked at individually when calculating whether, over a period of 90 days, at least 20 workers employed in the establishment in question were made redundant and therefore whether the more onerous collective redundancy rules applied.
This case still needs to go back to the Court of Appeal to make a ruling under English law, in the particular circumstances of the Woolworths case. It seems pretty clear now that they will agree with the ECJ.
However this does not leave matters as clear-cut as it might at first seem. Indeed, the Advocate General in this case was of the opinion that, for instance, a single business with a number of outlets in one shopping mall might not be able to argue that each outlet amounted to an “establishment”. It is possible to imagine other cases where this is not so clear. For instance, very fragmented workforces such as delivery drivers, where the only point of contact between a large number of disparate employees would be a head office.
This decision is likely to create more litigation rather than less because so many different types of businesses will now be enjoying the relief of not having to collectively consult, or so they think.