Collective redundancy consultation: ECJ guidance

Mark Minns, 14 October 2009

The ECJ has recently issued guidance relating to the duty to inform and consult employees about collective redundancies under Article 2(1) of the EC Collective Redundancies Directive which is implemented in the UK by s.188 of Trade Union and Labour Relations (Consolidation) Act 1992.

The ECJ held that an employer’s duty to consult is triggered where a strategic or commercial decision has been taken compelling it to contemplate or plan for collective redundancies, and not when such a decision is merely contemplated. Therefore, it is clear that some intention on the part of the employer to make collective redundancies has to exist before the duty is triggered.

In a corporate group, the obligation to consult falls on the subsidiary where the redundancies are to be made even if the strategic decision was taken by the parent company. However, the obligation is only triggered when the parent company has identified the subsidiary in which the redundancies are to be made.

Furthermore, the obligation to consult is not dependent on the employer being able to supply all the necessary information to the employees’ representatives. The employer may supply that information during the consultation as and when it becomes available.

Akavan Erityisalojen Keskuslitto WEK ry and others v Fujitsu Siemans Computers Oy C-44/08