UK: Collective redundancy consultation - ECJ Advocate-General's Opinion suggests UK law on timing may be wrong

Under EU-derived law, employers are required to consult in good time about ways of avoiding or minimising collective redundancies and mitigating the consequences.

Readers will be aware that in USA v Nolan the ECJ has been asked to decide whether consultation is required before an employer proposes to make a strategic business decision that will foreseeably or inevitably lead to redundancies (so that consultation must encompass the reasons for that decision), or whether consultation is only required once the employer has made that decision and is proposing the consequential redundancies (so that consultation only covers the redundancy proposals themselves).

Current UK law takes the former, more onerous approach, at least where there is a business closure (UK Coal Mining v NUM).

The ECJ's judgment is expected this Summer, and the Advocate-General's Opinion (which is not binding on the ECJ but is often followed) has just been published.  If adopted by the Court, it would be good news for employers.

The Opinion rejects the suggestion that consultation is necessarily required prior to a strategic business decision to close a workplace, even if in practice this means that consultation would be limited to ways of mitigating the consequences.  However, an employer could still be in breach of the obligation to consult if a strategic decision (for example a closure decision by a parent company) were made without leaving the employer any time in which to contemplate redundancies and genuinely consult.  This suggests a slightly different focus, on whether the consultation has been effective rather than on issues of timing.  It will be interesting to see whether the ECJ agrees.