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Advocate General backs UK Government in Woolies case

Nick Thorpe
05/02/2015
Advocate General Wahl has today delivered his opinion in the Woolies case on the meaning of "establishment". If you are an avid follower of our blog, you will know that the Woolies case had been Advocate General Wahl has today delivered his opinion in the Woolies case on the meaning of "establishment". If you are an avid follower of our blog, you will know that the Woolies case had been referred by the Court of Appeal to the European Court of Justice (ECJ) after the Employment Appeal Tribunal (EAT) removed the requirement under section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992 for the proposed collective redundancies to be "at one establishment".

The result of the EAT's decision meant that multi-site employers, potentially, had to take into account redundancies across all of their sites, rather than at each site, when determining whether or not their collective obligations to inform and consult in a redundancy situation had been triggered because of plans to make 20 or more staff redundant.

In contrast to the EAT's decision, the Advocate General's opinion supports the UK Government's position that the meaning of "establishment" under the relevant European Directive should be the same whichever limb of the Directive a Member State has sought to implement under national law, and that an establishment is the "local employment unit". The issue of what is a "local employment unit" is a question of fact which would need to be determined by the national courts on a case-by-case basis (which was the position prior to the EAT's decision in Woolies).

If the ECJ follows the Advocate General's opinion, this will see a welcome return to the previous position adopted by multi-site employers and the UK courts to the question of establishment – and will remove some of the uncertainty employers have faced over recent months. However, we will need to wait a few months before judgment is given by the ECJ.

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