A Butler and others v Testerworld Ltd (In Administration) and Secretary of State for Business and Trade: 1302673/2022 and others
EMPLOYMENT TRIBUNALS
Case No 1302673/2022
Between
Andy Butler and others (see schedule)ClaimantTesterworld Limited (in administration) Rule 96 party: Secretary of State for Business and TradeRespondentDate 6 December 2023
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The claimants’ claims that the respondent failed to comply with the requirements of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 in respect of their dismissals are well founded.[2]The Tribunal orders the respondent, by way of protective award under section 189(3) of the 1992 Act, to pay to each of the claimants a payment equivalent to remuneration for the period of 90 days beginning on 9 May 2022. Recoupment[3]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply to this award. The protected period is the period of 90 days beginning on 9 May 2022.
REASONS
[1]Each of the claimants named in the schedule has made a complaint under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 on the ground that the respondent failed to comply with a requirement of section 188 in respect of his or her dismissal. The respondent company’s administrators have given consent for the claims to continue.[2]The respondent has not presented a response to the claims.[3]I have decided that a determination can properly be made of the complaints on the available material.[4]On the available material I am satisfied of the following.a. As at 9 May 2022 the respondent was proposing to dismiss as redundant, within a period of 90 days or less, 20 or more employees who were assigned to carry out their duties at the respondent’s depot at Hainge Park, Tividale, Oldbury.b. The claimants were employees of the respondent who may be affected by the proposed dismissals. They were assigned to carry out their duties at the respondent’s depot at Hainge Park, Tividale, Oldbury. They were dismissed as redundant on 9 May 2022.c. For the purposes of section 188 Trade Union and Labour Relations (Consolidation) Act 1992, the respondent’s depot at Hainge Park, Tividale, Oldbury was either an establishment in itself or it was part of a larger unit constituting an establishment. In order to determine the claimants’ claims it is unnecessary for me to decide which of those two possibilities was in fact the case.d. The respondent was required to consult about the dismissals all the persons who were 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: section 188 Trade Union and Labour Relations (Consolidation) Act 1992. For the purposes of the consultation, the respondent was required to disclose in writing to the appropriate representatives the information set out at section 188(4) of the Act.e. The claimants were not employees of a description in respect of which an independent trade union was recognised by the respondent.f. There were no employee representatives appointed or elected by the affected employees otherwise than for the purposes of section 188, who had authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf.g. There were no employee representatives elected by the affected employees, for the purposes of section 188, in an election satisfying the requirements of section 188A(1). The respondent did not invite the claimants to elect such representatives. The respondent did not consult with any of the claimants individually about the proposed redundancies.h. Each of the claimants is entitled to make a complaint under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 on the ground that the respondent failed to comply with a requirement of section 188 in respect of his or her dismissal.i. The respondent failed to comply with the requirements of section 188 in respect of each of the claimants’ dismissals.j. The respondent has not shown that there were special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of section 188.k. Each of the complaints was presented to the tribunal within the period of three months beginning with the date on which the claimant’s dismissal took effect (taking into account section 292A).[5]The claimants’ complaints under s189 are well founded.[6]Section 189 provides as follows: (2) If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award. (3)A protective award is an award in respect of one or more descriptions of employees— (a)who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and (b)in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188, ordering the employer to pay remuneration for the protected period. (4)The protected period— (a)begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and (b)is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with any requirement of section 188;but shall not exceed 90 days[7]I have determined that it is appropriate to make a protective award under section 189 in respect of each of the claimants.[8]In determining the length of the protected period I have had regard to the seriousness of the employer’s default in complying with the requirements of section 188 and borne in mind guidance given in the case of GMB v Susie Radin Ltd [2004] EWCA Civ 180, [2004] IRLR 400.[9]I am satisfied on the material available that this a case where there has been no consultation at all in relation to the claimants’ proposed dismissals and there are no mitigating circumstances. Therefore, it is just and equitable that the length of the protected period in the case of each claimant should be the maximum of 90 days. Employment Judge Aspden Date: 6 December 2023 Schedule of claimants Claim number Claimant 1302673/2022 Andy Butler 1302675/2022 Steven Cartwright 1302677/2022 Daniel Clarke 1302678/2022 Mark Clarke 1302679/2022 Robert Cole 1302680/2022 Mark Cottrell 1302681/2022 Lorna Coyle 1302682/2022 Jenny Coyle 1302684/2022 Klaudia Csorba 1302685/2022 Rob Cundy 1302686/2022 Steven Davis 1302687/2022 Lee Denigan 1302688/2022 Jessica Drury 1302689/2022 Vicki Drury 1302690/2022 Gail Dyer 1302691/2022 Chelsea Dyer 1302692/2022 Helen Eastwood 1302693/2022 Karen Esprey 1302694/2022 Martin Evans 1302695/2022 James Evans 1302696/2022 Wayne Fellows 1302697/2022 Nathan Fisher 1302698/2022 Liga Folkmane 1302699/2022 Willaim Gambon 1302700/2022 Kate Gravel 1302701/2022 Christopher Green 1302702/2022 Simone Green 1302703/2022 Elaine Grove 1302704/2022 Jacob Groves 1302705/2022 Gary Gwilt 1302707/2022 Jayne Hipkiss 1302708/2022 Colin Howarth 1302710/2022 Agnieszka Jachym 1302711/2022 Antony James 1302712/2022 Sukhjit Johal 1302714/2022 Baljinder Kaur 1302715/2022 Lynda Keating 1302716/2022 Mark Leader 1302717/2022 Patrycja Magiera 1302719/2022 Philip Mansell 1302720/2022 Jay Moore-walton 1302721/2022 Jordan Morris 1302722/2022 Paul Parker 1302723/2022 Sachin Patel 1302724/2022 Hitesh Patel 1302725/2022 Cosmin Popa 1302726/2022 Jayne Pratt 1302727/2022 Trevor Priest 1302728/2022 Danielle Reay 1302729/2022 Aron Ryan 1302730/2022 Tracy Sankey 1302731/2022 Helen Scriven 1302732/2022 Alina Seputiene 1302733/2022 Garfield Sharpe 1302735/2022 Richard Simms 1302736/2022 Davinder Singh 1302737/2022 Mangveer Singh 1302738/2022 Nirmla Sisodia 1302739/2022 Elaine Squires 1302740/2022 Ralph Squires 1302741/2022 Marin Tabara 1302742/2022 Sunil Tarsem 1302743/2022 Helen Taylor 1302744/2022 Robert Taylor 1302745/2022 Jaqueline Thomas 1302746/2022 karen Turnbull 1302747/2022 Maria Walker 1302748/2022 Anthony Walker 1302749/2022 Gary Warmer 1302750/2022 kevin Wassell 1302751/2022 Maria West 1302752/2022 Karl Williams 1302753/2022 Lisa Williams 1302754/2022 Henry Williams 1302755/2022 Kiri Woodhouse 1302756/2022 Christopher Woollaston 1302757/2022 Mark Woolley 1302759/2022 Darren Bowker 1302760/2022 Daryl Bowker 1302762/2022 Aaron Bowker 1302764/2022 Philip Sharp 1302765/2022 Kulwant Kaur 1302766/2022 Mohammed Kabel 1302767/2022 Melanie Stallard