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A landmark employment law case which relates to an employer’s obligation to consult with staff when it is looking to make 20 or more staff redundant was heard at the Court of Appeal (CoA) on November 18.

The USA v Nolan cases focuses on the trigger point for when a business should enter into collective consultation, as well as providing guidance on how much information a business must provide when consulting with representatives.

The case involving Ms Nolan was initially passed to the CoA after she succeeded in claiming the US Government had not consulted with her properly when they made her redundant from a US military base in the º£½ÇÊÓƵ.

The CoA sought clarity on the correct interpretation of the European Collective Redundancies Directive from the European Court of Justice (ECJ).

The CoA asked for guidance in relation to whether an organisation needs to begin consultation at an early stage – when it is merely thinking about changes which might result in redundancies, but has not yet made a final decision, or at a later point when it has made a final decision to reduce headcount.

The case has returned to the CoA because the ECJ said it was not able to determine this issue due to a complex exclusion in the Directive relating to employees of public administrative bodies. Following the hearing a final decision is expected in 2014.

This case is very significant for businesses and comes at a time when some organisations are entering redundancy programmes.

The European Collective Redundancies Directive requires businesses to consult when redundancies are ‘contemplated’, however this wording is not replicated in the º£½ÇÊÓƵ law, which instead requires consultation to start when redundancies are ‘proposed’, in other words where there is an intention to make redundancies.