Calculating the number of employees

No more establishment test?

Section 188 of TULRCA says there must be collective consultation where 20 or more employees are proposed to be dismissed as redundant “at one establishment”. However, in a landmark decision, USDAW v Ethel Austin Limited and Woolworths (in administration) [2013] UKEAT/0547/12/KN, the EAT has ruled that the words “at one establishment” unlawfully restrict the scope of the Collective Redundancies Directive and must be deleted from the legislation in order to comply with European law. The issue has been referred to the European Court of Justice to rule conclusively, but in the meantime, reps should approach collective consultation on the basis that the duty to consult is triggered whenever an employer proposes to dismiss at least 20 employees as redundant within 90 days, regardless of where they work.