Redundancy - USA v Nolan

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

Can the European Court give a preliminary ruling on the effect of the Collective Redundancies Directive, when the dispute concerns an establishment governed by public law, such as a US army base in the UK?

No, says the ECJ in USA v Nolan.

This case concerns a claim on behalf of civilian employees on a US military base in the UK that they had not been consulted soon enough for the purposes of Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 when, by a decision to close the base, this led to multiple redundancies. The Court of Appeal referred the issue of when consultation should have begun to the European Court.

Although UK domestic law, contained in Section 188, does not exclude public administrative bodies or establishments governed by pubic law and applies to all employers, Article 1(2)(b) of the Collective Redundancies Directive 98/59 excludes such bodies.

The Court held that, whilst it was in the interests of the European Union to secure the uniformity of interpretations of an EU instrument and those of national law which transpose it, this was not possible where, as in the present proceedings, the EU measure expressly provides an exclusion from its scope. Therefore the European court did not have jurisdiction to respond to the question referred by the UK Court of Appeal.

In due course, the Court of Appeal will have to make its own mind up on the question of when consultation should have begun in this case, resolving such issues as any conflict between the domestic authority of UK Coal Mining Limited v National Union of Mineworkers (Northumberland Area), and the ECJ decision in Akavan Erityisalojen Keskusliitto AEK ry and Others v Fujitsu Siemens Computers Oy on the question of timing of consultation.