The ECJ, in Junk v Wolfgang Kuhnel, has clarified the position as to the employer's
duty to inform and consult their workforce before undertaking collective redundancies.
A question on the interpretation of the Collective Redundancies Directive (No.
98/59) had been referred to the ECJ by a German court. The Directive states
that the information and consultation obligations must be complied with before
the redundancy was effected with however was silent as to the definition of "redundancy"
The UK Government submitted observations to the ECJ. Their argument was that "redundancy" must
refer to the point at which the employment relations come to an end. This contrasts
with the argument put forward by the German court that redundancy referred
to the expression by the employer of his intention to bring the employment
to an end. The UK rejected this interpretation as, at any time prior to the
point at which the employment relations come to an end, the employer may withdraw
his intention to bring the relations to an end.
The ECJ however declined to follow the arguments of the UK Government and
stated that the spirit and the letter of the law suggested that the 'intention'
definition adopted by the German court was correct. Therefore in interpreting
the Directive, redundancy is said to have taken place when the employer communicates
to the workforce his intention to effect several dismissals.