* United Kingdom, UK Supreme Court, 21 October 2015 UKSC 63

Identification of the case

• Equality before the law (art. 20 CFREU)
• Non-discrimination (art. 21 CFREU)

• Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA)
• Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995
• European Communities Act 1972

• Council Directive 98/59/EC
• Council Directive 77/187/EEC

Summary of the case

In 2006, the appellant, the USA, decided for strategic reasons to close the watercraft repair centre (RSA Hythe) where the respondent, Mrs N., was employed, resulting in her redundancy a day prior. She brought Employment Tribunal proceedings complaining that her employer had failed to consult with any employee representative as required by procedure when handling collective redundancies. The proceedings succeeded before Employment Tribunal, obtaining order for remuneration for a one-month protected period. The decision was upheld on appeal by Employment Appeal Tribunal. On further appeal, the Court of Appeal ordered there should be a reference to the Court of Justice of the European Union, raised by decision in UK Coal whether obligation to consult arises “(i) when the employer is proposing, but has not yet made, a strategic business or operational decision that will foreseeably or inevitably lead to collective redundancies; or (ii) only when that decision has actually been made and he is then proposing consequential redundancies?”. This was unanswered by the Court of Justice as it declined jurisdiction.

Order for remuneration for one month protected period

The Court of Justice declined jurisdiction.

The Appellant invoked Article 18 TFEU enshrining the prohibition of discrimination on the basis of nationality and referred to it containing the same terms as Article 21(2) CFREU. The appeals were dismissed. The Supreme Court found, on the first ground, that just because the legislation did not contain a clear exemption, courts were not obliged to read such an exemption into the legislation. On the second ground, the Supreme Court found that TULCRA had established a unified domestic regime. The Secretary of States had not exceeded his powers in the 1995 regulations.

Role of the Charter and role of the general principles on enforcement

Article 21 CFREU was invoked by the appellant.

Section 188 TULRCA:

(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be [affected] by the proposed dismissals or may be affected by measures taken in connection with those dismissals.

(7) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsections (1A), (2) or (4) the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances.

The appellant argued that on the basis of Article 18 TFEU and Article 21 (2) CFREU, the UK courts would have to recognise other member states of the EU as enjoying like exemptions from TULCRA to those TULCRA provides for UK Crown employees, and by extension, foreign states should also enjoy the like immunity. The appellant proposed that the principle of non-discrimination operates under EU law horizontally to protect the appellant, the USA, even though it is not an EU member State or European citizen, citing CJEU jurisprudence. The Supreme Court held that whether Article 18 TFEU or Article 21 CFREU apply in favour of member states can be left open, and, if they do, the question of whether a member state could rely on them horizontally can also be left open due to a lack of clarity on whether the referred to jurisprudence applied in cases not involving age discrimination. It further referred to the fact that the CJEU declined to rule in the present case on the extent to which TULCRA covers workers employed by public administrative bodies, stating further that it was, thus, impossible to conclude that the appellant, or another EU/non- member states could insist on such a horizontal entitlement. Relying on the argument that Articles 18/21 do not contain a general prohibition of discrimination, but protection for the nationals of EU member states from discrimination on the grounds of nationality, the Supreme Court stated that in its view non-member states were not entitled to protection under articles 18/21 in any circumstances.

Articles 6 and 14 ECHR were discussed by the Court, which found that while non-discrimination may be argued as a general principle of international law, this does not apply between states, which cannot take advantage of Articles 6 and 14 ECHR, nor of other international human rights instruments containing a prohibition of discrimination.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
• Dialogue between high court - lower instance court at national level

• CJEU C-144/04, Mangold v Helm
• CJEU C-555/07, Kücükdeveci v Swedex GmbH & Co KG
• CJEU C-176/12, Association de médiation sociale

Conform interpretation with EU law as interpreted by the CJEU.

To determine the scope of the principle of non-discrimination under European Union law.

Additional notes on the decision