Mr M J Stevens and Others v Elements Europe Ltd (in Administration) and Secretary of State for Business & Trade: 1304080/2025 and Others

EMPLOYMENT TRIBUNALS

Case No 1304080/2025

Between

Mr M J Stevens & Others (per schedule)Claimant

(1) Elements Europe Limited (in Administration) (2) Secretary of State for Business & TradeRespondent

Before

Employment Judge Maxwell

Date 16 July 2026

JUDGMENT

[1]The Claimants’ complaints about the failure of the First Respondent to comply with the requirements of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 are well founded and succeed.

[2]A protective award for the period of 90 days beginning on 4 June 2025 is made in favour of the Claimants employed by the Respondent at its premises in Hadley Castle Works, Hadley, Telford, TF1 6AA, who were dismissed as redundant on or after that date.

REASONS

[3]This case relates to claims of various Claimants, which have been consolidated, under section 189 of the Trade Union & Labour Relations (Consolidation) Act 1992 (“TULCRA”) for an alleged failure to collectively consult pursuant to section 188.

Evidence

[4]I was provided with:4.1 a bundle of documents;

4.2 a witness statement from Mr Hollis, one of the Claimants.

Facts

[5]The Respondent was in the business of manufacturing room modules and bathroom pods, from premises in Telford. The company did not recognise a trade union for the purposes of collective bargaining.

[6]In March 2025, the Respondent informed employees of a proposal to reduce the number of production lines from 7 to 4, which may lead to redundancies amongst those employed in production. Arrangements were made for the election of employee representatives for the purposes of redundancy consultation. Shortly thereafter, however, the Respondent put up a notice saying that the consultation process was paused. It was not subsequently resumed.

[7]On 29 April 2025, the Respondent sent an email to the affected production staff apologising for the uncertainty, referring to the recent decision to pause redundancy consultation and thanking all for their patience.

[8]Mr Hollis says that some of the Claimants were told thereafter of plans to build a new factory and were thereby reassured. He does not, however, say that he was a party to these communications and I cannot make a findings as to what the employees were told.

[9]On 3 June 2025, all staff were invited to a meeting taking place the following day.

[10]On 4 June 2025, 141 employees were dismissed for redundancy with immediate effect. 76 employees were retained to assist the administrators. The majority of those were themselves dismissed in the period to the end of July 2025. Those dismissed came from all parts of the business. Redundancies were not limited to the production department.

Law

[11]Insofar as material, TULCRA sections 188, 188A and 189 provide: 188 Duty of employer to consult representatives.(1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are 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. (1A) The consultation shall begin in good time and in any event— (a) where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 45 days, and (b) otherwise, at least 30 days, before the first of the dismissals takes effect. (1B) For the purposes of this section the appropriate representatives of any affected employees are– (a) if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union, or (b) in any other case, whichever of the following employee representatives the employer chooses:– (i) employee representatives appointed or elected by the affected employees otherwise than for the purposes of this section, who (having regard to the purposes for and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf; (ii) employee representatives elected by the affected employees, for the purposes of this section, in an election satisfying the requirements of section 188A(1).

(2) The consultation shall include consultation about ways of— (a) avoiding the dismissals, (b) reducing the numbers of employees to be dismissed, and (c) mitigating the consequences of the dismissals, and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.

(3) In determining how many employees an employer is proposing to dismiss as redundant no account shall be taken of employees in respect of whose proposed dismissals consultation has already begun.

(4) For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives— (a) the reasons for his proposals, (b) the numbers and description of employees whom it is proposed to dismiss as redundant, (c) the total number of employees of any such description employed by the employer at the establishment in question, (d) the proposed method of selecting the employees who may be dismissed, (e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect, (f) the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any enactment) to employees who may be dismissed, (g) the number of agency workers working temporarily for and under the supervision and direction of the employer, (h) the parts of the employer's undertaking in which those agency workers are working, and (i) the type of work those agency workers are carrying out. […] (7) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsection [(1A), (2) or (4)], the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances. Where the decision leading to the proposed dismissals is that of a person controlling the employer (directly or indirectly, a failure on the part of that person to provide information to the employer shall not constitute special circumstances rendering it not reasonably practicable for the employer to comply with such a requirement. […] 188A (1)The requirements for the election of employee representatives under section 188(1B)(b)(ii) are that– (a) the employer shall make such arrangements as are reasonably practical to ensure that the election is fair; (b) the employer shall determine the number of representatives to be elected so that there are sufficient representatives to represent the interests of all the affected employees having regard to the number and classes of those employees; (c) the employer shall determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees; (d) before the election the employer shall determine the term of office as employee representatives so that it is of sufficient length to enable information to be given and consultations under section 188 to be completed; (e) the candidates for election as employee representatives are affected employees on the date of the election; (f) no affected employee is unreasonably excluded from standing for election; (g) all affected employees on the date of the election are entitled to vote for employee representatives; (h) the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, may vote for as many candidates as there are representatives to be elected to represent their particular class of employee; (i) the election is conducted so as to secure that– (i) so far as is reasonably practicable, those voting do so in secret, and (ii) the votes given at the election are accurately counted. (2) Where, after an election of employee representatives satisfying the requirements of subsection (1) has been held, one of those elected ceases to act as an employee representative and any of those employees are no longer represented, they shall elect another representative by an election satisfying the requirements of subsection (1)(a), (e), (f) and (i) 189 Complaint and protective award. (1) Where an employer has failed to comply with a requirement of section 188 or section 188A, a complaint may be presented to an employment tribunal on that ground– (a) in the case of a failure relating to the election of employee representatives, by any of the affected employees or by any of the employees who have been dismissed as redundant; (b) in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related, (c) in the case of failure relating to representatives of a trade union, by the trade union, and (d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant. (1A) If on a complaint under subsection (1) a question arises as to whether or not any employee representative was an appropriate representative for the purposes of section 188, it shall be for the employer to show that the employee representative had the authority to represent the affected employees. […] (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. […] (6) If on a complaint under this section a question arises— (a) whether there were special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of section 188, or (b) whether he took all such steps towards compliance with that requirement as were reasonably practicable in those circumstances, it is for the employer to show that there were and that he did.

[12]Guidance on the meaning of “proposing” was provided by the EAT in MSF v Refuge Assurance Plc

[2002] ICR 1365

, per Lindsay P: 44. That being so, but this not being a case where, on that account, the domestic provision can be disapplied by us, we are left with the task of seeing whether the employment tribunal erred in law, that question to be approached on the basis that, on a straightforward construction of the language of section 188, a “proposal” to dismiss within it emerges, if at all, at a stage later than the “contemplation” of redundancies. Of the meanings of “to propose” given by the Shorter Oxford English Dictionary perhaps the most fitting in context is “to lay before another or others as something which one offers to do or wishes to be done”. 45 The employment tribunal held that under section 188 there was no duty to consult before the employer had formulated its own proposals; there was a distinction to be drawn between the employer at a management level formulating a plan that may have the likely consequence of redundancies and his making a proposal to dismiss. There was no obligation to consult before the management knew what it may want to do. The employment tribunal said: “We find that proposing to dismiss means more than a mere contemplation of, or consideration of, dismissal during the formulation and adoption of a business plan but is something less than a final decision.” A little later the tribunal continued: “At what point in time a proposal is made, and when the duty to consult arises, depends upon the facts in each case.” Later they added: “There is no duty to consult with the trade union until, at the very earliest, the board of directors has given its approval to the proposal. Until that point in time the management has been formulating business plans to put to the board. This is so even where the board of directors has given its approval for the merger discussions to go ahead.” There may be cases where, by delegation from the board, the decision whether the employing company proposes to dismiss has been moved from the board to some other body such as the human resources department but, absent some such delegation and bearing in mind that it is the “employer” who has to be proposing to dismiss in order to trigger section 188, we are unable to describe any of the tribunal’s conclusions we have cited above as in error of law where only the construction of section 188 is in play.

[13]When determining the award, the correct approach involves an assessment of the seriousness of the Respondent’s default; see Susie Radin Ltd v GMB

[2004] 2 All ER 279

, per Peter Gibson LJ: 45. I suggest that ETs, in deciding in the exercise of their discretion whether to make a protective award and for what period, should have the following matters in mind.(1) The purpose of the award is to provide a sanction for breach by the employer of the obligations in s 188: it is not to compensate the employees for loss which they have suffered in consequence of the breach.

(2) The ET have a wide discretion to do what is just and equitable in all the circumstances, but the focus should be on the seriousness of the employer’s default.

(3) The default may vary in seriousness from the technical to a complete failure to provide any of the required information and to consult.

(4) The deliberateness of the failure may be relevant, as may the availability to the employer of legal advice about his obligations under s 188.

(5) How the ET assess the length of the protected period is a matter for the ET, but a proper approach in a case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the ET consider appropriate.

Conclusion

[14]At the beginning of June 2025, the Respondent proposed to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less.

[15]Whilst the Respondent had made arrangements for the election of employee representatives in March 2025, this was for those employed in production only, in relation to an earlier and more limited redundancy exercise that did not go ahead.

[16]There was no election of representatives for the purposes of consultation about the redundancies proposed in June 2025 or thereafter. Nor did the Respondent attempt or purport to consult with those previously elected in March. This was in breach of its duty under section 188.

[17]Pursuant to TULRCA section 189(1)(a) the Claimants have standing to bring their own claims for a protective award. This is a case of a failure relating to the election of employee representatives and the Claimants were the affected employees, who were dismissed as redundant.

[18]There was no direct consultation with those who were to be dismissed in June 2025 or thereafter.

[19]None of the required written information was provided.

[20]No special circumstances have been advanced by the Respondent.

[21]The Claimants’ complaints about the failure of the First Respondent to comply with the requirements of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 are well founded and succeed.

[22]Given there was a complete failure with respect to the duty of consultation, an award of 90 days is appropriate. Approved by: Employment Judge Maxwell Date: 16 July 2025 SCHEDULE OF CLAIMANTS 1304080 2025 Mr Martin Jeffrey Stevens 1304081 2025 Mr Robert S Corbett 1304082 2025 Mr Stephen Tipper 1304253 2025 Mr Steven Hollis 1304254 2025 Mr Keith Hancock 1304255 2025 Mr George Thompson 1304256 2025 Ms Wendy Johnson 1304257 2025 Mr Michael Richards 1304258 2025 Mr Steven Anson 1304259 2025 Mr Hubert Bal 1304260 2025 Mr Filip Bal 1304261 2025 Mr Dave Lewis 1304262 2025 Mr Adam Bal 1304263 2025 Ms Anju Treesa Mathew 1304264 2025 Ms Ateeq Hussain 1304265 2025 Mr Lewis Cooper 1304266 2025 Mr Brook Heywood 1304267 2025 Mr Alex Waterman 1304268 2025 Mr Jacob Baker 1304269 2025 Ms Aisha Matlub 1304270 2025 Mr Chehow Anthony Ayres 1304271 2025 Mr Anthony Ayres 1304272 2025 Mr Aaron Dodd 1304273 2025 Mr Richard Hoof 1304274 2025 Mr Pawel Szypulski 1304275 2025 Mr Jak Morgan 1304276 2025 Mr Wayne Allen 1304277 2025 Mr Andrew Seymour 1304278 2025 Mr Balal Mughal 1304279 2025 Mr Thomas Washbourne 1304280 2025 Mr Christopher Chambers 1304281 2025 Mr Bozena Kempsell 1304282 2025 Mr Justin Weaver 1304283 2025 Mr Nathan Pope 1304284 2025 Mr Martin Jones 1304285 2025 Mr Jack Ellis 1304286 2025 Mr Mark Knightingale 1304287 2025 Mr Andy Lindo 1304288 2025 Mr Mohammed Hamid 1304289 2025 Mr Liam Evans 1304290 2025 Mr Karl Bailey 1304291 2025 Mr Daniel Keiten 1304292 2025 Mr Joel Payne 1304293 2025 Mr David Handley 1304294 2025 Mr Jan Volney 1304295 2025 Mr Erjon Keri 1304296 2025 Mr Neil Hodgkinson 1304297 2025 Mr Jamie Smith 1304298 2025 Mr Steve Garner McNaney 1304299 2025 Mr George Boakye 1304300 2025 Mr Jordan Dickinson 1304301 2025 Mr Royston Moore 1304302 2025 Mr Darren Phillips 1304303 2025 Mr Philip Hoyles 1304304 2025 Ms Mandy Saunders 1304305 2025 Ms Kirstie Clayton 1304306 2025 Mr Laurence Anderson 1304307 2025 Mr Martyn Robinson 1304308 2025 Ms Kamina Smith 1304309 2025 Mr Gavin Harris 1304310 2025 Mr Garry Jones 1304311 2025 Mr Andrew Brownhill 1304312 2025 Mr Wayne Davidson 1304313 2025 Mr Kumar Sekar 1304314 2025 Mr Kenneth Hollins 1304315 2025 Ms Julia Ellen Clarke 1304316 2025 Mr Andrew Lockley 1304317 2025 Mr James Constable 1304318 2025 Mr Damien Heywood 1304319 2025 Ms Stephanie Mcginn 1304320 2025 Mr Samuel Mee 1304321 2025 Mr Ricky Walker 1304322 2025 Mr Graham Walker 1304323 2025 Ms Sania Naeem 1304324 2025 Ms Hafiz Mubashar 1304325 2025 Ms Jason Gordon 1304326 2025 Ms Katie Bradley 1304327 2025 Mr Lee Allen 1304328 2025 Ms Vicoria Oroian 1304329 2025 Mr Vasile-Cristian Oroian 1304330 2025 Mr Ibrahim Yakubu Issah 1304331 2025 Ms Stephanie Brettell 1304332 2025 Mr Daniel Ludlam 1304333 2025 Mr Robin Evans 1304334 2025 Mr Paul Cotterill 1304335 2025 Mr Brian Adams 1304336 2025 Mr Luke Wells 1304337 2025 Mr Richard Sales 1304338 2025 Mr Rob Maka Tiler 1304339 2025 Mr Alex Rowe 1304340 2025 Mr Duncan Elgie 1304341 2025 Mr Michael Price 1304342 2025 Mr Rob Bagshaw 1304343 2025 Ms Louisa Summers 1304344 2025 Mr Craig Lee 1304345 2025 Mr Joshua Greenwood 1304346 2025 Mr Adam Collier 1304347 2025 Mr Piotr Kalisz 1304348 2025 Mr Neil Astley 1304349 2025 Mr Demarne Wilkes 1304350 2025 Mr Barrie Higgins 1304351 2025 Mr Keith Marsh 1304352 2025 Mr Benjamin Boreland 1304353 2025 Mr Curtis Simcox 1304354 2025 Mr Jaroslaw Nowak 1304355 2025 Mr John Williams 1304356 2025 Mr Darren Venn