Court of Appeal rejects bid to exclude more public sector workers from collective redundancy consultation protection
United States of America v Nolan  EWCA Civ 71 (04 February 2014)
On the 4th February 2013 the Court of Appeal handed down its latest judgement in the long running collective redundancy consultation case of USA v Nolan, in which Mark Mullins of Outer Temple Chambers, instructed by Thompsons Law on behalf of the GMB, continues to represent Mrs Christine Nolan. The decision confirms that public sector workers in the UK have statutory redundancy protection (with those in “crown employment” excluded and covered by voluntary arrangements). The USA has sought permission to appeal the decision to the Supreme Court. The important question of when the obligation to consult over collective redundancy arises (‘the Fujitsu issue’) is to be listed for a further hearing before the Court of Appeal.
Following the decision of the CJEU that the dismissal of staff at a military base was not within the scope of the Directive 98/58 and not to answer the question referred to it by the Court of Appeal, the USA argued that s.188 of TULC(A)1992 had to be construed in the same way and that this was a compete answer to Mrs Nolan’s claim. The USA went further, arguing that the collective redundancy consultation provisions do not apply to any worker employed by a “public administrative body” in the UK. The Court rejected all the USA’s arguments. It found that generalisations about the “goldplating” of EU Directives were unhelpful. The draftsman must have made a deliberate choice not to reproduce the wide exclusion covering public sector workers in the Directive and to exclude from protection only those workers in the well understood and narrower category of “Crown employment”. Introducing the concept of a “public administrative body” into employment tribunal proceedings would be highly unwelcome. The EAT case of Renfrewshire Council v. Educational Institute of Scotland  ICR 172, in which it had been argued that a school was a “public administrative body” and its employees not entitled to collective redundancy consultation, was an example of the kind of issue that could arise. The Court of Appeal also rejected the argument that the 1995 Regulations transposing the Directive into UK law were ultra vires s.2 of the European Communities Act 1972. While the Regulations created rights and obligations going beyond the Directive, applying Oakley v Animal  EWCA Civ 1991, it was plain Parliament must have intended the provision in question to be capable of being enacted by secondary legislation.