04 February 2015

AG gives opinion in 'establishment' cases

The opinion of the Advocate General (AG) has been published today in three cases looking at the concept of establishment for the purposes of collective consultation.
Readers will recall the case of Usdaw & anor v WW Realisation 1 Ltd & ors, commonly known as the 'Woolworths case' in which the EAT found that the UK had not correctly implemented the Directive (98/59) and that the definition of establishment should be taken to mean the entire undertaking of an organisation.
The AG's opinion is that the establishment is the local employment unit.  He was not prepared to state that the definition of establishment was the entire undertaking of an organisation however he did set out that member states are free to adopt measures more favourable to workers.
The Directive allowed member states a choice in how collective redundancies would be defined. Insisting that the establishment was the entire undertaking of the organisation would render that choice superfluous.
Of course it is possible that the ECJ will not follow this opinion and until we have their judgment the risk averse approach is to continue to aggregate the number of redundancies across the whole organisation to see if the requirement to collectively consult is triggered.
We will report the judgment of the full court of the ECJ and any developments from our national courts as soon as they are published.

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