When should the consultation begin?

In USA v Nolan [C-583/10], the Court of Appeal asked the ECJ if an employer should begin consulting with employee representatives about redundancies:

• When the employer starts to think about closing a workplace or
• When the employer has decided to close a workplace.

The Advocate General has ruled that:

• The consultation should begin when an employer has decided to close a workplace.

• The Court of Appeal should determine the date on which the employer decided to close the workplace and whether the consultation began “in good time” for the purpose of s. 188(1A) of TULR(C)A 1992.

The decision of the ECJ is awaited. The ECJ usually agrees with the ruling of the Advocate General.

Age discrimination was justified

In Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330, Mr Woodcock was entitled to an enhanced retirement pension (ERP) on his 50th birthday. The cost of providing an ERP to Mr Woodcock was considerably higher than the cost of making him redundant.

Cumbria Primary Care Trust (CPCT) gave a redundancy dismissal notice (RDN) to Mr Woodcock - before the first consultation meeting had taken place – to ensure that the notice expired before his 50th birthday. The duration of the RDN was one year.

Mr Woodcock claimed that the timing of the RDN was due to his age - and therefore - he was a victim of unlawful age discrimination. His treatment could not be justified by CPCT.

The Court of Appeal disagreed. CPCT had a legitimate aim, i.e. dismissing Mr Woodcock who had become redundant and the timing of the RDN was a proportionate means of achieving the aim. A part of the aim was to avoid the extra cost of providing an ERP to Mr Woodcock [see paragraphs 66 – 70].

Also see Age discrimination: "cheapest employee" criterion was lawful