In United States of America v Nolan, the European Court of Justice has confronted the combined forces of redundancy procedure and semantics. Perhaps overfaced with such a powerful combination it has declined to give a ruling in the long running saga of whether the USA was in breach of an obligation to inform and consult employees before closing an army base situated in the UK, because although UK law does not exclude public bodies from the operation of domestic rules on redundancy consultation, the European directive on collective consultation expressly does make such an exclusion. The Court of Appeal had asked it to determine the point at which the duty to consult is triggered. While the UK legislation refers to redundancies being "proposed" – EU law uses the term "contemplated"; and so uncertainty has arisen about when, exactly, the duty to consult is triggered. The point therefore remains to be determined by the Court of Appeal.

As is usual with European cases the judgment of the Court was preceded (last March) by the Opinion of the Advocate General (AG). The AG was concerned that, above all, the obligation to consult under TUPE should not be triggered "prematurely". This seems to be an entirely laudable concern, taking into account that employees might be unnecessarily worried about a potential transfer, even though that transfer might not ultimately happen. However, that appears to be at odds with the European reference to redundancies being "contemplated" which implies that, at that stage, the decision to make people redundant has not been finalised.

The counterpoint to that is that a consultation should not take place too late, so that it is in effect a sham. What is the point of a collective consultation when the decision to make people redundant has already been taken, i.e. when redundancies are "proposed"?

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