An employment tribunal has held that there was a "substantial serious failure" by Woolworths to comply with its collective consultation duties under section 188(1) of TULRCA when it closed its stores and made its retail employees redundant. There were no special circumstances which made it not reasonably practicable for Woolworths to comply with its duties; its financial circumstances and the fact of its administration did not by themselves excuse its failure. However, as there was some consultation, the tribunal awarded protective awards of 60 days' gross pay (rather than the maximum of 90 days).

A key issue in the case was the concept of an "establishment" for the purposes of determining whether the duty to consult was triggered. The employment tribunal held that each store was an establishment, rather than Woolworths' nationwide retail operations. Consequently, the duty to consult was not engaged in respect of those stores with less than 20 employees and so employees at those stores could not benefit from a protective award. The employment tribunal declined to make a reference to the ECJ on the meaning of Article 1(1)(a) of the European Collective Redundancies Directive (which section 188(1) of TULRCA implements), as there is EAT case law that it is not possible to construe section 188(1) in line with the Directive. The EAT or a higher court would have to reconsider this point before deciding whether to make a reference on this issue. (USDAW and others v WW Realisation 1 Limited (in Liquidation) and another ET 3201156/2010 and others.)