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Collective Redundancies

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 Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett until the end of the month.

Is there an exception for 'public administrative bodies' from collective consultation on large-scale redundancies in TULRCA 1992?

No, held the Supreme Court in a 4-1 decision in the long-running case of USA v Nolan, dismissing the USA's appeal.

The case arose from the closure of a US Army base in 2006, resulting in the dismissal of Mrs Nolan and others without collective consultation. The Supreme Court rejected an argument that the consultation provisions in TULRCA (as amended by regulations in 1995) were invalid as regards the US Army as a public administrative body. The argument being that as the EU Directive on collective consultation excluded public administrative bodies, the 1995 regulations (implementing an ECJ judgment) could only extend TULRCA's provisions that were EU law and not pure UK law.

The Court held, answering a "difficult and borderline question" that the 1995 regulations amended what was a unified regime of EU and UK law for collective consultation under the original 1992 Act, so the 1995 amendment was not ultra vires by extending UK law to cover public administrative bodies, including the US Army, with Lord Carnwath dissenting on this point.

The Court dismissed two other grounds of appeal relating to whether TULRCA should be construed so as to avoid liability for a foreign state under jure imperii considerations governing non-commercial activity of states. (State immunity had not been pleaded).

The case was remitted to the Court of Appeal to determine the UK Coal/Fujitsu issue of when the obligation to collectively consult is triggered, is it by the business decision on redundancies, or by the implementation of that decision?