Opinion of the Advocate General – Collective Redundancy Consultation

In Akavan Erityisalojen Keskusliitto AEK ry and others v Fujitsu Siemens Computers Oy (C-44/08), a case concerning the EC Collective Redundancies Directive (the "Directive"), the Advocate General held that the Directive's provisions regarding collective consultation are not automatically triggered where an employer proposes to take, or actually takes measures as a result of which collective redundancies are to be expected. The duty to consult will only arise where the employer intends to make collective redundancies or at least anticipates that collective redundancies may be a possibility as a result of the planned measures.

In addition, the Advocate General held that in cases involving a group of undertakings, where a parent company contemplates redundancies, the employer's duty to consult only arises once the parent company has identified the affected subsidiary. However, before the parent company makes the final decision to dismiss, the subsidiary employer must have concluded the process of collective consultation.

The collective consultation requirements in the Directive are implemented in the United Kingdom by the Trade Unions and Labour Relations (Consolidation) Act 1992 ("TULRCA"). The Employment Appeal Tribunal has interpreted TULRCA as far as possible in line with the Directive's requirements and any European Court of Justice ("ECJ") decision on the meaning of the Directive will have an impact on English law in this area. The opinion of the Advocate General in this case is similar to the current "proposing to dismiss" test in TULRCA. The ECJ decision is expected towards the end of this year.