TY - JOUR

T1 - A ‘pick and mix' approach to collective redundancy

T2 - USDAW

AU - Butler, Mark

N1 - This is a pre-copy-editing, author-produced PDF of an article accepted for publication in British Journal for the Philosophy of Science following peer review. The definitive publisher-authenticated version Butler, Mark A ‘Pick and Mix’ Approach to Collective Redundancy: USDAW Industrial Law Journal 2018 47: 297–314 is available online at: https://academic.oup.com/ilj/article/47/2/297/5036789

PY - 2018/7/2

Y1 - 2018/7/2

N2 - The recent litigation on collective redundancy rights raised a number of important issues, all of which centred on whether the national practices in the UK and in Spain were compliant with the relevant EU legislation. The importance of ensuring that the collective redundancy regime operates appropriately has once again reared its head following the collapse of BHS and Austin Reed, and may do again following a vote for Brexit. Inevitably the Court of Justice of the European Union played a pivotal role in interpreting the scope of the legislation, with three distinct and separate challenges to the respective national application of the collective redundancy rights in USDAW , Lyttle and Cañas . This paper will give consideration to the issues raised across these three cases. To this end the primary focus of this paper is on the interpretation of the term ‘establishment’, which is central to the working of the Collective Redundancies Directive. This paper identifies the approach adopted by the CJEU in interpreting this concept, before questioning whether an alternative approach may have been more desirable. The second part of this paper considers questions concerning vertical direct effect of the Directive, and horizontal direct effect of rights that are contained within the Charter of Fundamental Rights. Whilst this paper will be led by the UK position and the decision of the European Court in the USDAW litigation, reference will also be made to the decisions in Lyttle and Cañas where appropriate, given the close nexus between these cases.

AB - The recent litigation on collective redundancy rights raised a number of important issues, all of which centred on whether the national practices in the UK and in Spain were compliant with the relevant EU legislation. The importance of ensuring that the collective redundancy regime operates appropriately has once again reared its head following the collapse of BHS and Austin Reed, and may do again following a vote for Brexit. Inevitably the Court of Justice of the European Union played a pivotal role in interpreting the scope of the legislation, with three distinct and separate challenges to the respective national application of the collective redundancy rights in USDAW , Lyttle and Cañas . This paper will give consideration to the issues raised across these three cases. To this end the primary focus of this paper is on the interpretation of the term ‘establishment’, which is central to the working of the Collective Redundancies Directive. This paper identifies the approach adopted by the CJEU in interpreting this concept, before questioning whether an alternative approach may have been more desirable. The second part of this paper considers questions concerning vertical direct effect of the Directive, and horizontal direct effect of rights that are contained within the Charter of Fundamental Rights. Whilst this paper will be led by the UK position and the decision of the European Court in the USDAW litigation, reference will also be made to the decisions in Lyttle and Cañas where appropriate, given the close nexus between these cases.

U2 - 10.1093/indlaw/dwy008

DO - 10.1093/indlaw/dwy008

M3 - Journal article

VL - 47

SP - 297

EP - 314

JO - Industrial Law Journal

JF - Industrial Law Journal

SN - 0305-9332

IS - 2

ER -