When does a "redundancy" take place for the purposes of the EU Collective Redundancies Directive?

The EU Collective Redundancies Directive (98/59/EC) states that: "Where an employer is contemplating collective redundancies, [it] shall begin consultations with the workers' representatives in good time with a view to reaching an agreement". In Junk v Kühnel [2005] IRLR 310 ECJ, the European Court of Justice (ECJ) considered whether "redundancy" for the purposes of the Directive means the actual cessation of the employment or the expression by the employer of its intention to bring the employment to an end. Declining to accept the argument put forward by the UK Government that "redundancy" must refer to the point when the employment relations come to an end, it came to the conclusion that the latter interpretation is correct. In answer to a second question put to it the ECJ then went on to say that an employer is entitled to carry out collective redundancies only after the conclusion of the consultation procedure.

The UK courts must seek to interpret the provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 to accord with the ECJ's interpretation of the Directive. Employers would be well advised to ensure that they avoid giving notice of dismissal until consultation has been completed.