New Judgment: The United States of America v Nolan  UKSC 63
21 Wednesday Oct 2015
On appeal from:  EWCA Civ 71
The Supreme Court dismissed the USA’s appeal by a majority of 4:1 regarding their obligations under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA), s188, during the respondent’s redundancy following the closure of her US military base, RSA Hythe.
The respondent brought Employment Tribunal proceedings under the TULCRA, part IV Chapter II, arguing that the USA had failed to consult with any employee representative when proposing to make her redundant. She succeeded before the Employment Tribunal on the basis that the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 amended TULCRA to require employee representatives to be designated for consultation purposes in all situations covered by TULCRA. The Employment Appeal Tribunal also upheld this decision and the remuneration order awarded to the respondent.
The USA appealed to the Court of Appeal and they referred a question to the CJEU regarding whether the obligation to consult arose on a proposal or only on a decision to close the military base. However, the CJEU declined jurisdiction on the basis that national defence and the dismissal of staff at a military base are outside the scope of the Council Directive 98/59/EEC and so the Court of Appeal ordered a further hearing on its original question. The USA appealed to Supreme Court.
In giving the lead majority judgment Lord Mance stated that although the present situation may not have been foreseen by the legislature, it is not a reason for reading into clear legislation a specific exemption which would not reflect the scope of any exemption in EU law.
He also reasoned that TULCRA regulates the procedures for dismissal on the grounds of redundancy of employees at institutions in England, Wales and Scotland. The UK is not legislating extra-territorially when it covers proposals or decisions about domestic redundancies developed or taken abroad. He stated this appeal concerns situations covered by TULCRA but falling outside EU law, so the USA cannot rely on EU law as entitling it to protection from discrimination. EU law does not protect third country nationals from discrimination or therefore non-member states.
In relation to the USA’s final ground of appeal he stated that the submission that the 1995 Regulations went beyond the Secretary of State’s powers in protecting employees of public administrative establishments without trade union representation would also be rejected.
To watching the hearing please visit: Supreme Court website