CJEU, 22 February 2024, Case  C‑589/22, Resorts Mallorca Hotels International

The Court of Justice has specified the point at which an employer is required to enter into consultation with workforce representatives, when it is planning job losses. This case concerns a hotel company that employed 43 people at its central offices. It decided to transfer the management of 13 of its 20 establishments to another operator – a move that meant cutting the size of its central offices’ workforce. In the first instance, the employer asked these staff whether they were willing to fill 10 job vacancies that the new operator might have. Subsequently, 9 employees were dismissed for economic reasons. They believed that the employer had acted fraudulently in artificially encouraging voluntary departures of some workers in order to avoid carrying out a procedure for collective redundancy. Their appeal was rejected on the ground that the number of dismissals (9) did not meet the thresholds at which the procedure for collective redundancy became obligatory. The Court of Justice has already indicated that “a consultation which began when a decision making such collective redundancies necessary had already been taken could not usefully involve any examination of conceivable alternatives with the aim of avoiding them” (CJEU, 10 September 2009, Case  C‑44/08, K.L). This time, it held that under Article 2, paragraph 1, of Directive 98/59 of 20 July 1998 (see Collective redundancy), the consultation obligation arises when the employer “contemplates or plans a reduction of employment positions, the number of which may exceed” the thresholds for job losses fixed by the directive “and not when, after having adopted measures involving the reduction of that number, the employer became certain that it would in fact have to dismiss a number of workers greater than those fixed by the latter provision”.