A ‘Pick and Mix’ Approach to Collective Redundancy: USDAW

Abstract

The recent litigation on collective redundancy rights raised a number of important issues, all of which centred on whether the national practices in the UK and in Spain were compliant with the relevant EU legislation. The importance of ensuring that the collective redundancy regime operates appropriately has once again reared its head following the collapse of BHS and Austin Reed, and may do again following a vote for Brexit. Inevitably the Court of Justice of the European Union played a pivotal role in interpreting the scope of the legislation, with three distinct and separate challenges to the respective national application of the collective redundancy rights in USDAW , Lyttle and Canas . This paper will give consideration to the issues raised across these three cases. To this end the primary focus of this paper is on the interpretation of the term ‘establishment’, which is central to the working of the Collective Redundancies Directive. This paper identifies the approach adopted by the CJEU in interpreting this concept, before questioning whether an alternative approach may have been more desirable. The second part of this paper considers questions concerning vertical direct effect of the Directive, and horizontal direct effect of rights that are contained within the Charter of Fundamental Rights. Whilst this paper will be led by the UK position and the decision of the European Court in the USDAW litigation, reference will also be made to the decisions in Lyttle and Canas where appropriate, given the close nexus between these cases.