ECJ Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for the designation of workers’ representatives in an undertaking where an employer refuses to recognize such representatives, allow an employer to frustrate the protection provided by Articles 2 and 3 of Directive 75/129 must be regarded as contrary to the provisions of that directive.
According to Article 1(1)(a) of Directive 75/129, the directive applies to collective redundancies in the sense of dismissals for one or more reasons not related to the individual workers concerned, including dismissals resulting from new working arrangements within an undertaking unconnected with its volume of business.
Its scope cannot for that reason be limited to cases of redundancy defined as resulting from a cessation or reduction of the business of an undertaking or a decline in demand for work of a particular type.
National rules which merely require an employer to consult trade union representatives about proposed dismissals, to ‘consider’ representations made by such representatives and, if he rejects them, to ‘state his reasons’, whereas Article 2(1) of the directive requires the workers’ representatives to be consulted ‘with a view to reaching an agreement’ and Article 2(2) lays down that such consultation must ‘at least, cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and mitigating the consequences’, fail correctly to transpose Directive 75/129.
Where a Community directive does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive.
In the case where an employee may be entitled to payment of various amounts under his contract of employment and by reason of its breach, an award which may be set off against such amounts cannot be regarded as sufficiently deterrent for an employer who, in the event of collective redundancies, fails to comply with his obligations under Directive 75/129 to consult and inform his workers’ representatives.
The UK was in breach of the EC directive with regard to workers’ rights to consultation on redundancy, in that it had not complied with its obligations under the Directive when it allowed offset of monies, paid in lieu of notice, by an employer against the protective award. The United Kingdom had, because of s. 190(3), failed to provide for effective sanctions for a failure to consult as required by the 1975 Directive and so breached the obligations under that Directive and Article 5 of the Treaty.
Europa Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for the designation of workers’ representatives in an undertaking where an employer refuses to recognize such representatives, allow an employer to frustrate the protection provided by Articles 2 and 3 of Directive 75/129 must be regarded as contrary to the provisions of that directive. 2. According to Article 1(1)(a) of Directive 75/129, the directive applies to collective redundancies in the sense of dismissals for one or more reasons not related to the individual workers concerned, including dismissals resulting from new working arrangements within an undertaking unconnected with its volume of business. Its scope cannot for that reason be limited to cases of redundancy defined as resulting from a cessation or reduction of the business of an undertaking or a decline in demand for work of a particular type. 3. National rules which merely require an employer to consult trade union representatives about proposed dismissals, to ‘consider’ representations made by such representatives and, if he rejects them, to ‘state his reasons’, whereas Article 2(1) of the directive requires the workers’ representatives to be consulted ‘with a view to reaching an agreement’ and Article 2(2) lays down that such consultation must ‘at least, cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and mitigating the consequences’, fail correctly to transpose Directive 75/129. 4. Where a Community directive does not specifically provide any penalty for an infringement or refers for that purpose to national laws, regulations and administrative provisions, Article 5 of the Treaty requires the Member States to take all measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalties remains within their discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive. In the case where an employee may be entitled to payment of various amounts under his contract of employment and by reason of its breach, an award which may be set off against such amounts cannot be regarded as sufficiently deterrent for an employer who, in the event of collective redundancies, fails to comply with his obligations under Directive 75/129 to consult and inform his workers’ representatives.
Judges:
A-G Van Gerven
Citations:
Ind Summary 27-Jun-1994, Times 27-Jun-1994, [1995] 1 CMLR 345, [1994] ICR 664, [1994] EUECJ C-382/92, [1994] ECR I-2435, [1994] IRLR 392
Links:
Statutes:
Council Directive 77/187/EEC (OJ 1977 L61/26), Trade Unions and Labour Relations Consolidation Act 1992 190(3)
Jurisdiction:
European
Cited by:
Cited – Alderson and others v Secretary of State for Trade and Industry CA 8-Dec-2003
The claimant had been employed in a government department, the work of which was transferred to a private company. He sought to claim compensation for the adverse changes in his contract.
Held: At the time, the Regulations gave protection only . .
Cited – Susie Radin Ltd v GMB and others CA 20-Feb-2004
The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due. . .
Cited – Regina v Secretary of State for Trade and Industry ex parte Unison 1996
The 1978 Directive required consultation in the case of collective redundancies. Acts had incorrectly incorporated this requirement into English law. The error was corrected in the 1995 Regulations.
Held: Anything is ‘related to’ a Community . .
Cited – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Cited – Securicor Omega Express Ltd v GMB (A Trade Union) EAT 7-Apr-2003
EAT The company decided to close two branches and make redundancies. They presented the closure itself as a fait accompli to the union representatives. The Tribunal found that this involved a failure to consult . .
Cited – University and College Union v The University of Stirling SC 29-Apr-2015
The University needed to reduce its staff. They and the Union disputed whether research assistants on limited term contracts would simply cease to be employd as their terms concluded, or were entitled to be made redudant.
Held: The appeal was . .
Cited – The United States of America v Nolan CA 4-Feb-2014
The employee was made redundant from working at a US watercraft repair base. She complained that on the base closing the appellant had failed to consult with her as employee representative. The appellant denied that obligation. After a reference to . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 03 June 2022; Ref: scu.161001