ECJ issues guidance on collective redundancy consultation

16 September 2009

The European Court of Justice (ECJ) held that an employer triggers the duty to consult when there is a decision or change of activity which compels the employer to plan for redundancies. In a group of companies the obligation to consult falls on the subsidiary within which redundancies may be made, even if the decision was made by the parent company. Furthermore, the obligation to consult is not dependant on the employer being able to supply all necessary information to employee representatives. [...]

The ECJ clarified the meaning of an employer 'contemplating collective redundancies' in Article 2(1) of the Directive, which triggers the obligation to consult. The references in Articles 3 and 4 of the Directive to 'projected' collective redundancies confirm that the obligation arises when there is an intention to make collective redundancies. This intention will be deemed to form when the employer adopts 'strategic decisions' or 'changes in activity' compelling the employer to contemplate or plan for redundancies. [...]

The ECJ also confirmed that the obligation to consult does not depend on the employer being able to supply the employees' representatives with all the information required by Article 2(3)(b) of the Directive. The employer may supply that information during the consultation as and when it becomes available. Such flexibility is essential to enable employee representatives to be fully involved in the consultation, as it requires any new and relevant information to be supplied up until the end of the consultation process.

Extract from an IDS Brief article (www.idsbrief.com)

Source: ECJ 10/9/2009

Further information

ECJ judgement - Akavan Erityisalojen Keskusliitto AEK and Others (C-44/08)