Collective redundancy consultation


• I have a member (in a workplace where we are not recognised) who has just been made redundant along with about 60 other employees and there was no consultation. She worked in a small shop, with about 3-4 staff in each. I thought we had a good claim for a protective award, but now I understand there may have to be at least 20 in her workplace to succeed. What is the position?





It looks like you are aware of the law on collective redundancy consultation (Trade Union & Labour Relations (Consolidation) Act 1992, s188). 


This provides for a claim for a protective award if the employer has failed in its consultation obligations, as consultation should take place if the employer proposes to dismiss more than 20 employees “at one establishment” within a period of 90 days or less.


Key here is looking at the place to which affected employees are assigned to carry out their duties. 


An “establishment” may be something less than the whole organisation. And even if more than 20 employees are being made redundant by a business nationally, it is necessary to look at which part of the business they are assigned to. 


There may be some cases where small numbers in different places can be aggregated to show that they were assigned to one unit (such as a national sales team), even though they worked from different locations, making more than 20 at one establishment. 


As your member worked in a store, this is likely to be more straightforward. The leading case is one concerning shopworkers, that of USDAW and another v Ethel Austin Ltd and ors 2015 ICR 675, ECJ (the “Woolworths” case). 


This was determined by the European Court of Justice and the judgment was that the place to which employees were assigned in each case was the store, with that (and not the whole company) being the “establishment”. 


When the case went back to the UK Court of Appeal, the outcome was that employees at stores where fewer than 20 were employed were not entitled to bring a claim for a protective award.


So, check the details with your member to see if there may be anything to suggest she was assigned to any larger grouping than the store. 


You will also be aware that the employer still needs to have gone through a fair individual consultation, redundancy and dismissal process, giving notice and paying a redundancy payment to qualifying employees.