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Employment Law

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05 NOV 2015

United States of America v Nolan [2015] UKSC 63; (2015) EMPLR 065

United States of America v Nolan [2015] UKSC 63; (2015) EMPLR 065
21 October 2015

Supreme Court

Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord Carnwath

The UK’s 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.

The question 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 administrative bodies.

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.

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