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Wednesday, 5 February 2014
Collective Redundancy Consultation
Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary
In light of the CJEU’s decision that terminating an employment relationship between a UK national and a non-member state did not fall within the scope of the Collective Redundancies Directive,
should domestic law be interpreted on the basis that Parliament cannot
have intended to impose any obligations that were not required by the
Ms Nolan worked at a US Army base in the UK which closed down. Her
employer, the USA, failed to comply with the collective consultation
obligations set out in TULCRA. On reference to the CJEU, it determined that dismissals by non-member state employers fell outside the scope of the Directive.
Before the Court of Appeal, the USA argued that Government policy was
that when transposing an EU directive into domestic law to generally
avoid going beyond the minimum requirements imposed by that directive.
On that basis, it reasoned, TULCRA must be construed on the basis that
Parliament cannot have intended to confer any rights, or impose any
obligations, that were not required by the Directive. The Court of
Appeal rejected this argument on the basis that in this case the
draftsmen made a deliberate choice not to reproduce the terms of the
It was hoped that the Court would address the apparent inconsistency
between English and EU law on whether an employer needs to consult on
the underlying business decision which gave rise to a proposed
collective redundancy as oppose to merely about the consequences of that
decision ('the Fujitsu question'); however, that matter will be
determined at a future date.
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Daniel Barnett is a barrister at Outer Temple Chambers, with over 15 years' experience defending companies facing employment tribunal claims and associated commercial disputes. He is listed as a leading employment barrister in the ‘Legal 500′, and described in the Times Law Supplement as having “carved out a strong reputation”.
Daniel regularly advises and represents large and small businesses in discrimination claims, TUPE problems, team moves, removal of confidential business information, and unfair dismissal disputes. He has been appointed as employment law advisor to Acas since 2004, and is the author or co-author of seven legal textbooks.