The European Court of Justice has delivered its judgment  in the ‘Woolworths’ case.  

Employers must collectively consult where they propose to dismiss as redundant 20 or more employees at one establishment. If an employer fails to do this, each employee may be entitled to a tribunal award of up to 90 days’ gross pay.

Woolworths went into administration and made redundancies without consulting the employees concerned. The issue which has been going through the Tribunal system and the courts has been what is an “establishment”.  Should Woolworths have aggregated all their stores when deciding if they were exceeding the 20 threshold or should they have done a separate calculation for each store?  Is the “establishment” all stores or each store?

The European Court of Justice has now confirmed that an ‘establishment’ is the entity to which the workers made redundant are assigned to carry out their duties, which is a case specific analysis. In this particular case, each store could be a separate establishment, and if fewer than 20 redundancies were made at each store, then the collective consultation requirements were not triggered for the employees who worked in those stores.

However, what is or is not an ‘establishment’ will depend on the facts in each case, and matters such as whether or not a store is a distinct entity, and has permanence and stability, will be relevant as will whether or not the employees were assigned to work in one particular workplace or in multiple workplaces.