United States of America v Nolan
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Hooper,Lord Justice Laws |
| Judgment Date | 24 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1223,[2010] EWCA Civ 1416 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2009/1179,Case No:A2 / 2010 / 1179 |
| Date | 24 November 2010 |
[2010] EWCA Civ 1223
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mrs Justice Slade, Mr D. Norman and Mrs R. Chapman
Before: Lord Justice Laws
Lord Justice Hooper
and
Lord Justice Rimer
Case No: A2/2009/1179
Case Nos: UKEAT/0328/08/CEA; UKEAT/0329/08/CEA
Mr John Cavanagh QC (instructed by Nabarro LLP) for the Appellant
Mr Richard Lissack QC and Mr Mark Mullins (instructed by Thompsons, Solicitors) for the Respondent
Hearing dates: 24 and 25 March 2010
Lord Justice Rimer:
Introduction
This is the judgment of the court.
The appellant is the United States of America ('the USA'). The respondent is Christine Nolan. The proceedings arose out of a decision by the Secretary of the US Army to close a US Army base at Hythe, Hampshire known as RSA Hythe. The activity formerly carried on there was the repair of watercraft and other equipment used by US Forces on military operations. The closure took place on 30 September 2006 and resulted in the redundancy of some 200 civilian employees.
Mrs Nolan was one of them. She brought proceedings against the USA in the Southampton Employment Tribunal under the Trade Union and Labour Relations (Consolidation) Act 1992 ('the 1992 Act') for compensation by way of a 'protective award'. She claimed to sue as an 'employee representative' on behalf of the redundant employees. Her complaint was that the USA had failed to consult with representatives of the civilian workforce in accordance with its obligations under section 188 of the 1992 Act; in particular, that it had not so consulted before, and about, taking the operational decision to close the Base.
By a liability judgment sent to the parties on 6 February 2008, the employment tribunal (Employment Judge Guyer, Mrs S. Foulser and Mr W.M. Heckford) upheld both (i) Mrs Nolan's claim to be an 'employee representative' for the purposes of the 1992 Act and (ii) her claim that the USA had failed to discharge its consultation obligations. By a remedy judgment sent to the parties on 16 April 2008, the tribunal made a protective award in respect of all United Kingdom citizens who were civilian employees at the Base on 29 June 2006 (when the redundancy notices were issued) and set the protected period at 30 days.
The USA appealed to the Employment Appeal Tribunal against both limbs of the liability decision and also against the remedy decision. Its arguments on liability were (a) that as a foreign sovereign government it had no obligation, in advance of a decision to close a military base, to consult with the civilian workforce about the reasons for its closure; and (b) that the tribunal had anyway been wrong to find that Mrs Nolan was an 'employee representative' entitled to bring the claim. By its order of 15 May 2009, the appeal tribunal (Slade J, Mr D. Norman and Mrs R. Chapman) allowed the appeal under point (b) to the extent of remitting to the same tribunal for re-hearing the question of Mrs Nolan's entitlement to bring the claim. It otherwise upheld the tribunal's decisions on liability and remedy.
The USA's appeal to us is against the appeal tribunal's order. It repeated the argument that, as a foreign sovereign state, it had no such consultation obligation as the tribunals below had held. It also sought to pre-empt the need for that argument by raising (without objection) the new point, said to be supported by a decision of the Court of Justice of the European Union ('the ECJ') in 2009, that anyway no employer has an obligation to consult with its employees about a proposed operational decision to close a workplace that will lead to redundancies: it is said that the consultation obligation only arises after the employer has made such decision and is then proposing to dismiss the employees as redundant. If wrong on both points then, as to Mrs Nolan's status to bring the claims, the USA argued that the appeal tribunal should itself have decided that she was not an 'employee representative'; alternatively, that any remission of that question should not have been to the same tribunal but to a differently constituted one.
The remainder of this judgment is in seven sections which will (i) set out the material provisions of the Collective Redundancies Directive; (ii) set out the material provisions of the 1992 Act which gave domestic effect to that Directive; (iii) summarise the facts found by the employment tribunal; (iv) explain the course of the proceedings before the employment tribunal and its reasoning in its liability and remedy judgments; (v) summarise the appeal tribunal's decision; (vi) summarise the decision of the Employment Appeal Tribunal in UK Coal Mining Ltd v. National Union of Mineworkers (Northumberland Area) and another [2008] ICR 163; and (vii) discuss the arguments on the appeal.
The USA was represented before us by Mr John Cavanagh QC, who also appeared before the appeal tribunal, although not before the employment tribunal, where the USA was represented by Mr Lyndon James, a solicitor. Mrs Nolan was represented by Mr Richard Lissack QC and Mr Mark Mullins. Mr Mullins also appeared for her at the appeal tribunal, although not before the employment tribunal where she appeared in person.
We say straight away that we have come to the conclusion that we cannot decide this appeal without first making a reference to the ECJ on the new point taken by the USA to which we have referred in [6] above. We record that Mr Cavanagh indicated at the oral hearing that the USA did not wish any such reference to be made. Our consideration of the issues after we had reserved judgment led us to the provisional view that we ought to make a reference, and we sought further submissions on that matter from the parties. Having taken instructions on the matter, which required some weeks, Mr Cavanagh repeated that the USA did not want a reference to be made, but wished this court (which has no obligation to make a reference even if an applicable point of European Union law is not acte clair) to decide the point itself. We have of course had regard to the USA's position in that respect, and have given anxious consideration to what we should do, but have nevertheless reached the decision we have indicated. The remainder of this judgment explains the story and how and why we have reached that decision.
(i) The Collective Redundancies Directive
Directive 98/59/EC, the Collective Redundancies Directive ('the Directive'), is essentially a consolidation of Directive 75/129/EEC as amended by Directive 92/56/EEC. Recital 2 recites the importance 'that greater protection should be afforded to workers in the event of collective redundancies while taking into account the need for balanced economic and social development within the Community.' Article 1.1(a) defines 'collective redundancies' as meaning dismissals effected by an employer for one or more reasons not related to the individual workers concerned where, according to the choice of the Member States, the number of redundancies is (i) over a period of 30 days, various minimum numbers of redundancies varying according to the total numbers of employees (the details do not matter); and (ii) over a period of 90 days, at least 20 redundancies whatever the number of workers normally employed in the relevant establishments. Article 1.1(b) defines 'workers' representatives' as meaning the workers' representatives provided for by the laws or practices of the Member States. Article 1.2 provides that the Directive is not to apply to 'workers employed by public administrative bodies or by establishments governed by public law (or, in Member States where this concept is unknown, by equivalent bodies)', an exception that Mr Cavanagh accepted did not extend to workers employed by a foreign sovereign state such as the USA.
Article 2 provides, so far as material:
'1. Where an employer is contemplating collective redundancies, he shall begin consultations with the workers' representatives in good time with a view to reaching an agreement.
2. These consultations shall, at least, cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and of mitigating the consequences by recourse to accompanying social measures aimed, inter alia, at aid for redeploying or retraining workers made redundant.
Member States may provide that the workers' representatives may call on the services of experts in accordance with national legislation and/or practice.
3. To enable workers' representatives to make constructive proposals, the employers shall in good time during the course of the consultations –
(a) supply them with all relevant information and
(b) in any event notify them in writing of –
(i) the reasons for the projected redundancies;
(ii) the number and categories of workers to be made redundant;
(iii) the number and categories of workers normally employed;
(iv) the period over which the projected redundancies are to be effected;
(v) the criteria proposed for the selection of the workers to be made redundant in so far as national legislation and/or practice confers the power therefor upon the employer;
(vi) the method for calculating any redundancy payments other than those arising out of national legislation and/or practice.
The employer shall forward to the competent public authority a copy of, at least, the elements of the written communication which are provided for in the first subparagraph, point (b), sub-points (i) to (v)…. '
Article 5 provides:
'This...
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