Collective Redundancies - AG's Opinion

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

What is the trigger point for the duty to inform and consult about collective redundancies? This must be determined by the national court in the light of CJEU guidance on Directive 98/59 says the AG's Opinion in USA v Nolan.

This case was referred to the CJEU by the Court of Appeal. It concerned a claim on behalf of civilian employees at a US military base in the UK that they had not been consulted soon enough when, on a decision to close the base, this led to multiple redundancies for the purpose of s 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. The decision to close the military base had been made by the Secretary of the US Army in September 2006. The British authorities were informed in April 2006. The commanding officer informed the workforce at that time. Consultation about redundancies did not commence until 5 June 2006.

Advocate General Mengozzi opined that an employer who is contemplating collective redundancies must begin consultations with the workers' representatives in good time with a view to reaching an agreement. In Akavan Erityisalojen Keskusliitto AEK ry and others v Fujitsu Siemens Computer Oy (Case C-44/08; [2009] IRLR 944) the Court stressed that the obligation should not be triggered prematurely. Akavan and Nolan concerned cases where the employer who is proposing a strategic or operational decision about closure ( in Nolan, the US Army) is in all probability not the same as the employer who is proposing consequential redundancies (in Nolan, the commanding officer of the base).

The Directive should therefore be interpreted as meaning that an employer's obligation to conduct consultations with workers' representatives arises when a strategic or commercial decision which compels him to contemplate or to plan for collective redundancies is made by a body or entity which controls the employer.

It is for the referring court to identify when a strategic decision which exerted such a compelling force on the employer, for the purposes of giving effect to the consultation obligation, occurred.