Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary
In light of the CJEU’s decision that terminating an employment relationship between a UK national and a non-member state did not fall within the scope of the Collective Redundancies Directive, should domestic law be interpreted on the basis that Parliament cannot have intended to impose any obligations that were not required by the Directive?
No, held the Court of Appeal in Nolan v USA.
Ms Nolan worked at a US Army base in the UK which closed down. Her employer, the USA, failed to comply with the collective consultation obligations set out in TULCRA. On reference to the CJEU, it determined that dismissals by non-member state employers fell outside the scope of the Directive.
Before the Court of Appeal, the USA argued that Government policy was that when transposing an EU directive into domestic law to generally avoid going beyond the minimum requirements imposed by that directive. On that basis, it reasoned, TULCRA must be construed on the basis that Parliament cannot have intended to confer any rights, or impose any obligations, that were not required by the Directive. The Court of Appeal rejected this argument on the basis that in this case the draftsmen made a deliberate choice not to reproduce the terms of the Directive.
It was hoped that the Court would address the apparent inconsistency between English and EU law on whether an employer needs to consult on the underlying business decision which gave rise to a proposed collective redundancy as oppose to merely about the consequences of that decision ('the Fujitsu question'); however, that matter will be determined at a future date.