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United States of America v Nolan  UKSC 63; (2015) EMPLR 065
21 October 2015
Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord
requirement to consult employee representatives over large-scale redundancies
applies to public administrative bodies in the same way as for other
organisations. Although the EU Directive on collective redundancy consultation
exempts public administrative bodies, the UK legislation, which pre-dated the
directive, did not.
This is one
aspect of the substantial litigation arising from the closure of a US Army Base
in 2006. The US government could have relied on State Immunity - the rule that
protects foreign states from being sued - but had chosen not to do so. A major
point still to be decided is when the obligation to consult arises; that point
was referred to the Court of Justice of the European Union (CJEU), which
refused to decide it because, for various reasons, the USA was outside the
scope of the Directive.
for the Supreme Court here was whether the 1995 regulations (which extended the
requirement to collectively consult over redundancies to situations where there
was no recognised trade union) we went beyond what was permitted by the
European Communities Act 1972. That Act enables the government to make
regulations to implement EU law. EU law
does not require public administrative bodies to consult collectively over
redundancies. Therefore, it was argued, the requirement to collectively consult
where there was no recognised trade union did not apply to public
The Supreme Court, by a majority, held that,
since the UK’s requirement for collective consultation predated the Directive
and did not exclude public administrative bodies, the amendments required by
the directive should similarly not exclude public administrative bodies.