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 obligation so long as it is not distinct, separate or divorced from it. The 1995 Regulations were valid.
Otton LJ said: ‘Section 2(2) read as a whole empowers [the Minister] to make provision by regulations: (a) for the purpose of implementing any Community obligation of the United Kingdom or enabling such any such obligation to be implemented, etc.; (b) for the purpose of dealing with matters arising out of or related to any such obligation, or rights, etc. These are very general and wide powers. Section 2(2)(b) is particularly widely drawn . . The first limb of section 2(4), properly construed, emphasises that delegated legislation under section 2(2) may repeal or amend Acts of Parliament (subject to the restrictions in Schedule 2 . . ). The Collective Redundancies Directive (75/129/EEC), read as a whole, provides for greater protection to be afforded to workers in the event of collective redundancies ‘while taking into account the need for balanced economic and social development within the Community’. Thus the Directive is not a measure which seeks to promote workers’ protection to the exclusion of all other considerations. It permits member states to strike an appropriate balance between the two goals. Article 5 recognises the right of member states to introduce legislation which is more favourable to workers, provided, on my interpretation, that such legislation is ‘related to’ the purpose of the Directive.’ and ‘The United Kingdom chose to provide more extended protection by the Employment Protection Act 1975, the amendments thereto, . . and the regulations under review. These were expressed to be ‘related to’ the Directive and Community obligations. . . . It is significant, in my view, that in the two cases which were considered by the Court of Justice in Commission of the European Communities v. United Kingdom (Cases C-382 and 383/92) [1994] I.C.R. 664 the Commission when making complaint did not aver that the measures themselves were not ‘related to’ the Directives. The Commission proceeded on the basis that the measures about which the complaint was made purported to be connected with and to implement the Directives but did so imperfectly. The Employment Protection Act 1975 was the first implementation of Directive (75/129/EEC). It did not follow that every subsequent implementation had to be by means of primary legislation. Thus I am satisfied that it was within the power of the Secretary of State, as a designated Minister, by subordinate legislation to amend the domestic primary legislation and to implement the Directive. Against that analysis I am satisfied that the applicants have not advanced a sound basis for limiting the scope of the phrase ‘relating to’ [sic] in section 2(2)(b) of the European Communities Act 1972. I reject the alternative meaning suggested by Mr Langstaff of ‘tangential or consequential’. This is not the language of the Directive or the United Kingdom legislation. I see no reason not to give the phrase ‘relating to’ or ‘related to’ any meaning other than its natural, everyday meaning. Thus I am satisfied that the obligation to consult a trade union in regard to one redundancy is related to a Community obligation, and not distinct, separate, or divorced from it.
Otton LJ, Newman J
[1996] ICR 1003
Directive 75/129/EEC, Employment Protection Act 1980, Trade Union and Labour Relations (Consolidation) Act 1992, Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995
England and Wales
CitedCommission v United Kingdom (Judgment) ECJ 8-Jun-1994
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 . .

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Updated: 15 February 2021; Ref: scu.222835