The case of USA v Nolan tackles an important jurisdictional point within employment law, says John McMullen
Employment lawyers have been waiting for some years for a definitive view on when, exactly, the duty on employers to inform and consult on multiple redundancies under s 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992) commences. Is it, for example, on a closure of the business, at the point when the employer is considering closing the business or, alternatively, is it only when consequential redundancies are proposed following that closure? In UK Coal Mining Limited v National Union of Mineworkers (Northumberland Area) (EAT/0397/06/R9) the Employment Appeal Tribunal (EAT) (Elias P as he then was) held that there was a duty on employers to consult on the commercial reasons for closing the business (where redundancies would be inevitable), not just on the consequential proposal for redundancies which followed.
Subsequent to this, the European Court handed down guidance on this issue following a referral from the Supreme Court of Finland in the case of
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