Employment Law Solutions. Expert advice... more personal

Collective Consultation: implications of USDAW v Ethel Austin Ltd (in administration) and another case

The Employment Appeal Tribunal made the full transcript to its decision in, what has become widely known as USDAW v Woolworths, available at the beginning of July following its earlier decision that a purposive construction of section 188(1) TULRCA be adopted.

Legal requirements

Section 188(1) of TULRCA puts employers under an obligation to consult in respect of collective redundancies where they are proposing to dismiss 20 or more employees “at one establishment” in a 90 day period.

Article 1(1) of the EU Collective Redundancies Directive, which underlies the principles implemented in TULRCA, provides a choice of two possible definitions of “collective redundancy” of which the UK purports to have selected the second:

“The dismissal, over a period of 90 days, of at least 20 workers, whatever the number of workers normally employed in the establishments in question”.

There is a clear discrepancy between the Directive and TULRCA but domestic case law has previously suggested that it is not possible to interpret the relevant section of TULCRA purposively to remedy this incompatibility.


As a result of Woolworths going into administration in late 2008 all the stores were closed shortly afterwards which resulted in large scale redundancies.

The employees’ union USDAW and employee representatives brought a claim to the tribunal alleging Woolworths have breached its obligations under section 188(1) TULRCA to inform and consult. The tribunal upheld the claim but found that this was only the case in stores where 20 or more employees were employed and therefore made 60 day protective awards to those staff but 3233 missed out on the basis they had worked in stores with less than 20 employees.

In 2010 a chain of 90 Ethel Austin stores went into administration and although carrying out a large scale redundancy exercise failed in their obligation to inform or consult. The tribunal awarded the maximum 90 day protective award to all employees formerly employed at stores with 20 or more employees.


USDAW appealed in both cases arguing that to comply with the Directive, section 188 needed to be interpreted purposively and proposed a number of ways in which this could be done.

The Employment Appeal Tribunal upheld the appeal.


In reaching its decision, the EAT considered other relevant cases on the interpretation of domestic law in relation to EU law and also the history of section 188. Ultimately it held that it was entitled to hold that the wording “at one establishment” be disregarded or deleted from the section altogether making it irrelevant where employees proposed for redundancy are located in a business.

This entry was posted in Law. Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *