Glidewell LJ considered the significance of the difference between the wording of the EC Directive, and the section implementing it and said: ‘In my view the difference between the wording of the Directive and the wording of section 188 of the Act 1992 is such that the section cannot be interpreted as having the same meaning as the Directive.
I say this because in the Directive consultation is to begin as soon as an employer contemplates redundancies, whereas under the Act of 1992 it only needs to begin when he proposes to dismiss as redundant an employee. The verb ‘proposes’ in its ordinary usage relates to a state of mind which is much more certain and further along the decision-making process than the verb ‘contemplates;’ in other words, the Directive envisages consultation at an early stage when the employer is first envisaging the possibility that he may have to make employees redundant. Section 188 applies when he has decided that, whether because he has to close a plant or for some other reason, it is his intention, however reluctant, to make employees redundant. Moreover, section 188 of the Act 1992 contains no words equivalent to those contained in Article 2 (2) of Directive (75/129/EEC).’
Judges:
Glidewell LJ, Hidden J
Citations:
[1993] ICR 720
Statutes:
EC Directive (75/129/EEC) 2(2), Trade Union and Labour Relations (Consolidation) Act 1996 188
Jurisdiction:
England and Wales
Cited by:
No Longer Good Law – UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area) and Another EAT 27-Sep-2007
The employer appealed against a protective award made for failing to consult the union on prospective redundancies.
Held: The appeal failed. The duty to consult arose as soon as the redundancies were fixed as a clear, even if there had been . .
Followed – MSF v Refuge Assurance Plc, United Friendly Insurance EAT 15-Feb-2002
EAT The EAT considered the employer’s duties to consult on making redundancies. The ET had found that company had satisfied the requirements. The Union argued that the duty to consult arose as soon as . .
Cited – Scotch Premier Meat Ltd v Stuart Burns and others EAT 28-Apr-2000
EAT Redundancy – Definition . .
Lists of cited by and citing cases may be incomplete.
Employment, European
Updated: 05 May 2022; Ref: scu.301663
