In USA v Nolan [2010] EWCA Civ 1223, the Court of Appeal (CA) was asked about the time that an employer should begin to consult with employee representatives about the closure of a workplace that would lead to redundancies.
Should the consultation begin when the employer proposes to close the workplace - or after the employer decided to close the workplace?
The CA said that the Akavan case (C-44/08) did not provide a clear answer to the question [see paras 54 - 62] – and therefore – it decided that the question should be referred to the ECJ.
In the Akavan case, the ECJ ruled that:
An employer must begin to consult with employee representatives after an authorising person or body (e.g. a board of directors) - had approved a proposal (e.g. a proposal to reduce staff costs) that would lead to redundancies.
The employer is not legally obliged to begin such consultation at the time the authorising person or body is considering the proposal.
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