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The Duty to Consult

This is a very brief post on today’s interesting but, in the grand scheme of things probably insignificant Supreme Court decision in The United States of America v Nolan on the duty to consult with a trade union on redundancies.

In the case the claimant, Ms Nolan, was employed as a civilian worker in a USA military base in Hampshire (RSA Hythe). A decision was taken in Washington to close the base and, as a result, the claimant was dismissed by reason of redundancy. Because the decision was not a UK decision but based in Washington the employer did not consider the consultation requirements in the event of potential redundancies under the Trade Union and Labour Relations (Consolidated) Act 1992 applied.  There was no consultation with any employees on the closure.

The case itself is concerned with the extent to which EU directives on consultation affect public authorities, and especially public authorities of foreign governments. The upshot however is that a foreign government with employees is obligated to consult under UK and EU law when the employment is in the UK.

But, and in this case it is a big but, it is apparent that while the claimant was correct on her understanding of the law and that a protective award for non-consultation was appropriate had the USA got its act together when it first filed its defence it could have pleaded state immunity and so not be liable in UK proceedings. In this regard, it seems the victory and extension (or rather, confirmation) of consultation obligations is ultimately pyrrhic. In future the USA can probably continue to evade any fair consultation processes to UK employees by claiming state immunity from domestic challenge.

So, a victory but a pretty meaningless one.

 

Cases Referenced:

The United States of America v Nolan [2015] UKSC 63

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