Mrs C Adams and others v SP Group Ltd (In Administration) and Secretary of State for Business, Energy and Industrial Strategy: 1304710/2018 and others

EMPLOYMENT TRIBUNALS

Case No 1304710/2018, 1304886/2018, 1300047/2019, 1304892/2018

Venue Birmingham

Hearing 25th September 2019

Between

Mrs C Adams and othersClaimant

SP Group Ltd (In Administration) and Secretary of State for Business, Energy and Industrial StrategyRespondent

Before

Employment Judge Choudry

Ms N Toner (instructed by Solicitor) for claimant

Date 31 August 2023

JUDGMENT

(1) The claim brought by Ms Ginnette Smith under case number: 1304886/2018 is dismissed upon withdrawal.

(2) The claim brought by Mrs Lucy Kimberley under case number: 1304820/18 is dismissed upon withdrawal.

(3) The claim of Mrs Kimberley Lucy under case number: 1300047/2019 is duly amended as the correct name of the claimant under this case number should be Mrs Lucy Kimberley.

(4) The claim brought by Mr Adam Sterling under case number:1304892/2018 is duly amended as the correct name of the claimant under this claim should be Mr Adam Moreland.

(5) The claim brought by Mrs Katarzyna Sobczak under case number:130495/2018 is duly amended as the correct name of the claimant under this should be Mrs Katarzyna Bautro.

(6) The claims brought by the 221 claimants set out in the attached schedule (“the Schedule”) that the first respondent failed to comply with the requirement under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 are well founded. The respondent is ordered to pay the claimants a protective award of remuneration for the protected period of 90 days from 24th July 2018.

(7) The Employment Protection (Recoupment of Benefits) Regulations 1996 apply in the case of each claimant.

(8) The claims for unfair dismissal, holiday pay and arrears of pay brought by 221 claimants set out in the Schedule remain stayed.

REASONS

Conclusions

[1]The 221 claimants set out in the attached Schedule brought claims for unfair dismissal, holiday pay, arrears of pay and a protective award following the termination of their contracts of employment by the respondent following the respondent entering into administration on 24th July 2018. The first respondent did not file a Response in respect of any of the claims. The claims for unfair dismissal, holiday pay and arrears of pay are stayed by consent by the second respondent. On 7th January 2019 the administrators gave consent for the claims for protective awards to proceed.

[2]The respondent specialised in design and printing of materials. Evidence and documents

[3]I heard evidence from Mrs Cassie Robertson (Account Manager), Mr Timothy Cryan (Database/Reporting Analyst), Mr David Bonehill (Operations Director) and Mr Richard Wilson (Internal Sales Coordinator). I was also presented with signed and dated statements for Mr Scott Westby (Account Manager), Ms Andrea Wood (Senior HR Business Partner), Ms Carly Hill (Account Manager), Ms Loraine Jones (Account Director) and Ms Harriet Green (Account Manager) who did not attend to give evidence. I explained to Ms Toner that I would not be able to attach the same weight to these statements as those for the witnesses who had given evidence on oath. In addition, I was presented with a bundle of some 154 pages and very helpful written submissions by Ms Toner.

Issues

[4]The issues for me to determine are as follows:4.1 Were the claimants assigned to an establishment where more than 20 employees were at risk of redundancy?

4.2 Was the first respondent under a duty to undertake collective consultation?

4.3 If so, did the employer undertake collective consultation in accordance with TULCRA sections 188 and 188A?

4.4 If not, do the claimants have standing to bring a claim for a protective award?

4.5 If so, should the Tribunal make a declaration and/or award a protective award?

4.6 If so, what is the appropriate length of the protective period and when should this commence?

Facts

[5]I make the following findings of fact:5.1 The first respondent specialised in design and printing materials. The first respondent used two addresses both at Hedera Road in Redditch, B98 9EY. Unit 1 housed the Head Office and manufacturing unit whilst Unit 9 was used for storage of products awaiting distribution. The HR team were also based here.

5.2 Approximately 100 employees were based at 1 Hedera Road and approximately 250 employees were based at 9 Hedera Road.

5.3 Staff moved freely between Unit 1 and Unit 9. Several claimants (Victoria Deacon, Harriet Green; Carly Hill; Scott Westby; Loraine Armstrong; Aisling Doyle-Rauf; David Jackson; Cassie Robertson; Daniel Sale and Perry Sammie) were contracted to work at client sites but attended Head Office several times each month.

5.4 All the claimants were subject to management decisions made at the first respondent’s Head Office and all the claimants based at client sites visited Head Office at least once a fortnight.

5.5 In respect of the claimants based at claimant sites some were given their own desks at the client’s premises whilst employees of the clients hot desked. These claimants worked from computers and server systems belonging to the first respondent rather than those of the clients. Some of client-based claimants had to sign in on arrival at the client’s sites but did not do so upon entering Redditch. These claimants were based at clients’ premises purely for the convenience of the clients so that their needs could be relayed to the first respondent at Head Office. Induction took place at Head Office, grievances were considered by Head Office, their data was stored at Head Office, they were invited to attend the Christmas party at Head Office. All the client-based claimants had email sign offs with the Redditch address and all of these claimants were reliant on Redditch to complete tasks assigned to them. Payroll, IT, HR, equipment needs, performance reviews, campaign briefing, stock management, forecasting of resource and capacity, training, estimating were all dealt with at Redditch.

5.6 The first respondent recorded losses throughout 2016, 2017 and 2018 and entered into administration on 24th July 2018. 193 employees were dismissed immediately on the first respondent entering into administration. Another 103 employees were dismissed on 31st July 2019. Several employees were retained to assist the administrators. The Schedule sets out the termination date of all the claimants.

5.7 The first respondent did not recognise any trade union nor have in place any employee representatives elected for the purposes of collective consultation. No election took place to elect staff representatives nor were nominated. The first respondent did not undertake any consultation before dismissing employees on the grounds of redundancy.

5.8 It is clear from the administrator’s statement of proposals that a decision was taken to close the business at some point between April and July 2018. One of the first respondent’s directors (Landry Kouakou) sought advice from Duff and Phelps and Gateley PLC between whom fees of £53,343 were accrued prior to the first respondent entering into administration.

Applicable law

[6]Section 188 of TUCLCRA provides:(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 , and (b) otherwise, at least 30 days, before the first of the dismissals takes effect...

(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… 4(a) the reasons for his proposals, (b) the numbers and descriptions 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. Section 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.

[7]Section 189(1) provides: 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,

(d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant.

[8]The first respondent carries the burden to show there has been compliance or defend itself from the claims and has done neither under section 189.

[9]Any protective period should commence on the first day of the dismissals as dictated by section 189(4) of TULRCA which provides: (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.

[10]The Tribunal is reminded of the guidance set out by Peter Gibson LJ in the Court of Appeal in Susie Radin Ltd v GMB and others

[2004] IRLR 400

CA (paragraph 45) provides: “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 assesses 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”.

[11]The definition of establishment can be interpreted in light of Directive 98/59/EC the objective being to provide protection for workers as per the case of Rockfon A/S v Specialarbejderforbundet i Danmark (C449/93). Submissions

[12]Ms Toner made written submissions which I have carefully considered.

[13]In summary, Ms Toner invites me to find that all the claimants are affected employees and were employed at the same establishment. As such, the first respondent was under an obligation to consult with the claimants before making the claimants redundant. It patently did no consultation either before or on entering into administration and that as it failed to comply with its statutory duty to do so when it could have done given the fact that the decision to close the business was taken at some point between April and July 2018.

[14]The first respondent has not sought to defend its failure to consult nor has it taken any steps to avoid, reduce or mitigate the effects of the dismissal on more than 300 employees. As such the failure could not be more serious. Ms Toner also suggests that the failure was deliberate given the background to the dismissal and the input pre-administration by the administrators and expert legal advice obtained prior to administration.

[15]Ms Toner also invites me to make some procedural amendments to the claims.

Conclusions

[16]In reaching my conclusions I have considered all the evidence I have heard and considered the bundle in its entirety. I have also considered the submissions made.

[17]The claim brought by Ms Ginnette Smith under case number: 1304886/2018 is dismissed upon withdrawal.

[18]The claim brought by Mrs Lucy Kimberley under case number: 1304820/18 is dismissed upon withdrawal.

[19]The claim of Mrs Kimberley Lucy under case number: 1300047/2019 is duly amended as the correct name of the claimant under this case number should be Mrs Lucy Kimberley.

[20]The claim brought by Mr Adam Sterling under case number:1304892/2018 is duly amended as the correct name of the claimant under this claim should be Mr Adam Moreland.

[21]The claim brought by Mrs Katarzyna Sobczak under case number:130495/2018 is duly amended as the correct name of the claimant under this claim should be Mrs Katarzyna Bautro.

[22]Turning to the issues which I need to decide I am satisfied that all 221 claimants were assigned to an establishment where more than 20 employees were at risk of redundancy. Even though 10 employees were based at client premises I am satisfied on the evidence before me that they were assigned to the Head Office given that all issues relating to their employment were handled by Head Office.

[23]Given that the first respondent dismissed more than 20 employees by reason of redundancy I am satisfied that there was a duty to consult on a collective basis as required by statute. The first respondent failure to discharge this duty nor did it provide any mitigation for its failure.

[24]As the first respondent did not recognise a trade union nor have in place any employee representatives I am equally satisfied that the claimants have standing to bring a claim for a protective award.

[25]Based on the evidence before me I find that the first respondent failed to comply with the requirement under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 and the claim for a protective award made by the claimants is well founded.

[26]As a there was a complete failure to undertake any consultation or to avoid, reduce or mitigate the effects of the dismissals on more than 300 staff I accept the submissions of Ms Toner that the failure could not be more serious. As such, the respondent is ordered to pay the claimants a protective award of remuneration for the protected period of 90 days from 24th July 2018.

[27]The recoupment regulations apply to the protective award. Signed 0n: 20th October 2019 Signed by: Employment Judge Choudry SCHEDULE LIST OF CLAIMANTS Adams & others v SP Group Limited (in administration) & others 1304710/2018 & others Title First Name Surname Case numbers EDT Mrs Caroline Adams 1304710 /2018 Mr Mukhtar Ahmed 1304711 /2018 Mr Craig Albutt 1304712 /2018 Mr Faruk Ali 1304713 /2018 Mrs Jacqueline Anson 1304714 /2018 Mr Jonathan Archer 1304715 /2018 Mr Loraine Armstrong 1304716 /2018 Mrs Michael Armstrong 1304717 /2018 Mrs Sarah Attride 1304718 /2018 Mr Dariusz Bartczak 1304719 /2018 Mrs Malgorzata Bartczak 1304720 /2018 Mr James Barton 1304721 /2018 Ms Katarzyna Bautro 1304951 /2018 Ms Jacqueline Beddoe 1304722 /2018 Mr Mitchel Bennett 1304723 /2018 Mrs Zuzana Bereznakova 1304724 /2018 Mr Jack Betts 1304725 /2018 Mrs Sharon Betts 1304726 /2018 Mr Timothy Blakemore 1304727 /2018 Mr David Bonehill 1304728 /2018 Mr James Bonehill 1304729 /2018 Mr Matthew Borthwick 1304730 /2018 Ms Kimberley Bourne 1304731 /2018 Mr Keith Bowen 1304732 /2018 Mr Steven Bradshaw 1304733 /2018 Miss Helen Briggs 1304734 /2018 Mr Carl Bright 1304735 /2018 Miss Amy-Jo Browning 1304736 /2018 Miss Samantha Browning 1304737 /2018 Mr Krzysztof Brzyski 1304738 /2018 Mrs Louise Budd 1304739 /2018 Ms Wendy Bull 1304740 /2018 26/07/2018 Mr John Burke 1304741 /2018 26/07/2018 Mrs Kay Burke 1304742 /2018 Mr Glenn Cattermole 1304743 /2018 Mr Sebastian Chabas 1304744 /2018 Mr Craig Chambers 1304745 /2018 Mrs Kay Church 1304746 /2018 12/09/2018 Mr James Clarence 1304950 /2018 Ms Claire Clarke 1304747 /2018 21/09/2018 Mr David Clarke 1304748 /2018 Miss Emily Claydon 1304749 /2018 Miss Nicola Colledge 1304750 /2018 Mr Jonathan Collins 1304751 /2018 24/08/2018 Mrs Laura Coupland 1304752 /2018 Mr David Coysh 1304753 /2018 Mr Sam Crockett 1304754 /2018 Mr David Cross 1304755 /2018

[49]Mr Paul Crowe 1304756 /2018

[50]Mrs Theresa Crowe 1304757 /2018

[51]Mr Philip Crumpton 1304758 /2018

[52]Mr Timothy Cryan 1304759 /2018

[53]Mr Slawomir Czacharowski 1304760 /2018

[54]Mr Magdalena Czarnomska 1304762 /2018

[55]Ms Dariusz Czarnomski 1304761 /2018

[56]Mr John Davis 1304763 /2018

[57]Mrs Victoria Deacon 1304764 /2018

[58]Mr Varun Dobb 1304765 /2018

[59]Mr Benjamin Dodd 1304766 /2018

[60]Mrs Carol Downes 1304767 /2018

[61]Miss Aisling Doyle-Rauf 1304768 /2018

[62]Mrs Alicja Dudaniec 1304769 /2018

[63]Mr Timothy Duffill 1304770 /2018

[64]Mr Elvis Eagle 1304771 /2018

[65]Mr Damion Ebanks 1304772 /2018

[66]Mr Darren Edmonds 1304773 /2018

[67]Mr Paul Edwards 1304774 /2018 02/08/2018

[68]Mr Scott Egan 1304775 /2018

[69]Miss Sarah Egginton 1304776 /2018

[70]Ms Carmen-Natalia Ercse 1304777 /2018

[71]Ms Stevie-Marie Ewen 1304778 /2018

[72]Mr David Farmer 1304779 /2018

[73]Ms Natalie Farrell 1304780 /2018

[74]Ms Kirsten Forbes 1304781 /2018

[75]Mr Daniel Ford 1304782 /2018

[76]Mr Wayne Foster 1304783 /2018

[77]Mr Muhammad Fowad 1304784 /2018

[78]Mr Andrew Fox 1304785 /2018

[79]Mr Jonathan Fox 1304786 /2018

[80]Mrs Hannah Gardner 1304787 /2018

[81]Miss Kelly Geehan 1304788 /2018

[82]Mr Ovidiu-Cosmin Gheorghita 1304789 /2018

[83]Ms Joanne Gilson 1304790 /2018

[84]Mr Nicholas Goble 1304791 /2018

[85]Mr Antony Grainger 1304792 /2018

[86]Ms Harriet Green 1304793 /2018

[87]Mrs Nicola Hackett 1304794 /2018

[88]Mr James Hall 1304795 /2018

[89]Mrs Michelle Hallam 1304796 /2018

[90]Mr Patrick Hardy 1304797 /2018

[91]Mr Michael Harrison 1304798 /2018

[92]Mr Brad Hawkeswood 1304799 /2018

[93]Mr Christopher Haynes 1304800 /2018

[94]Mr Phillip Heathcock 1304801 /2018

[95]Mr Alexis Hibell 1304802 /2018

[96]Mrs Carly Hill 1304803 /2018

[97]Mr Peter Holdstock 1304804 /2018

[98]Mr Zafar Iqbal 1304805 /2018

[99]Mr David Jackson 1304806 /2018

[100]Mr Paul Jackson-Smith 1304807 /2018

[101]Mr Umer Javid 1304808 /2018

[102]Mr Marcus Jerram 1304809 /2018

[103]Mr Kevin Jeske 1304810 /2018

[104]Ms Monika Jeske 1304811 /2018

[105]Mr Adam Johnston 1304812 /2018

[106]Mr Scott Johnston 1304813 /2018

[107]Mr Stephen Jones 1304814 /2018

[108]Mrs Renata Kaczmarek 1304815 /2018

[109]Mrs Sonia Kalinowska 1304816 /2018

[110]Miss Eszter Kaszab 1304817 /2018

[111]Mr Rahid Khan 1304818 /2018

[113]Mr Samuel Kidner 1304819 /2018 31/10/2018 112 Mrs Lucy Kimberley 1300047 /2019 Mr Matthew Kimberley 1304821 /2018 Miss Stephanie Kirby 1304822 /2018 Ms Laura Korsakovaite 1304823 /2018 Mr Pawel Kosinski 1304824 /2018 Mr Hubert Kulinski 1304825 /2018 Mr Vytautas Kuprys 1304826 /2018 Mr Szymon Lenard 1304827 /2018 21/09/2018 Mr Stephen Lenihan 1304828 /2018 Mrs Lisa-Marie Linden 1304829 /2018 Mr Stephen Lloyd 1304830 /2018 Mr Matthew Long 1304831 /2018 Ms Agata Madura 1304832 /2018 Mr Trevor Maguire 1304833 /2018 Miss Beata Malagowska 1304834 /2018 Mr Andrew Markham 1304835 /2018 Mr Richard Martyn 1304836 /2018 Mr Hubert Mastalerski 1304837 /2018 Mr Stephen May 1304838 /2018 Ms Carla McVeigh 1304839 /2018 Mr Alexander Melvin 1304840 /2018 Mr David Millington 1304841 /2018 Mrs Lidia Mitoraj 1304842 /2018 Mrs Malgorzata Mitoraj 1304843 /2018 Mr Douglas Mladenovic 1304844 /2018 Mr Russell Mobsby 1304845 /2018 Virgil- Mr Constantin Mogoi 1304846 /2018 31/08/2018 Mr Adam Moreland 1304892 /2018 Mr Sarwar Nasr 1304847 /2018 Ms Katarzyna Nita 1304848 /2018 Mr Lech Nita 1304849 /2018 Ms Amber Nosheen 1304850 /2018 Mr Christopher O'Donnell 1304851 /2018 Mr Andrew Owen 1304852 /2018 Mr Gary Page 1304853 /2018 Mr Kurt Parkinson 1304854 /2018 Mr Dhruva Patel 1304856 /2018 Mr Thomas Patrick 1304855 /2018 20/09/2018 Mr Christopher Pearce 1304857 /2018 20/09/2018 Mrs Toni Pearce 1304858 /2018 Mrs Magda Perduta-Ciecierska 1304859 /2018 Mr Simon Pinfield-Wells 1304860 /2018 Mrs Katarzyna Poplawska 1304861 /2018 Mr David Postings 1304862 /2018 Mr Robert Potter 1304863 /2018 Mr Steven Pound 1304864 /2018 Mr Jamie Powell 1304865 /2018 Mrs Sarah Powell 1304866 /2018 Mr Steven Prescott 1304867 /2018 26/07/2018 Mrs Fiona Proudley 1304868 /2018 Mr Adrian Randle 1304869 /2018 Mr Slavomir Regenda 1304870 /2018 Mrs Carolyn Reston 1304871 /2018 Mr Shazard Riaz 1304872 /2018 Mr James Ritchie 1304873 /2018 Miss Cassie Robertson 1304874 /2018 Mr Adam Robinson 1304875 /2018 Mr Tubbasam Sakhawat 1304876 /2018 Mr Daniel Sale 1304877 /2018 Ms Farah Saleem 1304878 /2018 30/07/2018 Mr Perry Sammie 1304879 /2018 Mrs Katarzyna Sekowska 1304880 /2018 Mr Rafal Sekowski 1304881 /2018 Ms Bethany Shaw 1304882 /2018 Mr Brian Shellum 1304883 /2018 Miss Emma Shepherd 1304884 /2018 Mr Jack Sillitoe 1304885 /2018 Mr Mariusz Sowa 1304887 /2018 Mrs Donna Stanley 1304888 /2018 30/07/2018 Mrs Louise Stanton 1304889 /2018 Miss Lesley Starkey 1304890 /2018 Ms Monika Stasiek 1304891 /2018 Mr Nicholas Stevens 1304893 /2018 Mr Richard Stormes 1304894 /2018 Mrs Luiza Szaniawska 1304895 /2018 Miss Alina Szazi 1304896 /2018 Mr Grzegorz Szypulka 1304897 /2018 Mr Ludwik Szypulka 1304898 /2018 Mr Darren Tarver 1304899 /2018 Mr Christopher Tindell 1304900 /2018 Ms Andrea Tomonyiczka 1304901 /2018 Mrs Natalie Tongue 1304902 /2018 Mr Bradley Townsend 1304903 /2018 Mr Richard Townsend 1304904 /2018 Mr Marwan Tuffuque 1304905 /2018 Mrs Nicola Turner 1304906 /2018 Miss Ema Vale 1304907 /2018 Mr Michael van Wyk 1304908 /2018 Ms Eva Verebova 1304909 /2018 Mr Matthew Vernon 1304910 /2018 22/08/2018 Mr William Vernon 1304911 /2018 Mrs Dawn Wadlow 1304912 /2018 Mr Richard Wakefield 1304913 /2018 Mr Craig Watkins 1304914 /2018 Mr William West 1304915 /2018 Mr Scott Westby 1304916 /2018 Mrs Paula Westwood 1304917 /2018 Mr David White 1304918 /2018 Miss Julian Whyte 1304919 /2018 Mr Mark Wilkins 1304920 /2018 Mr Mark Wilkinson 1304921 /2018 24/08/2018 Mr Robert Wilmot 1304922 /2018 Mr Iain Wilson 1304923 /2018 Ms Katherine Wilson 1304924 /2018 Mr Richard Wilson 1304925 /2018 Mr Kevan Wimlett 1304926 /2018 Ms Magdalena Wojtanowska 1304927 /2018 Mrs Andrea Wood 1304928 /2018 Miss Samantha Zollman 1304929 /2018

Conclusions

[1]In relation to the Claims of Mr Ovidiu-Cosmin Gheorghita:(1) the complaint as to the under-payment of a redundancy payment is well founded and the Respondent is ordered to pay the Claimant the further sum of £29.70 gross in respect of an outstanding redundancy payment;

(2) the complaint as to the under-payment of notice pay is well founded and the Respondent is ordered to pay the Claimant the further sum of £102.78 gross comprising £29.70 in respect of an under-payment arising from the calculation of notice pay and £73.08 incorrectly deducted in respect of entitlement to benefits;

(3) the complaint as to the under-payment of the protective award is well founded and the Respondent is ordered to pay the Claimant the further sum of £118.80 gross.

[2]In relation to the Claims of Miss Stephanie Kirby:(1) the complaint as to the under-payment of a redundancy payment is well founded and the Respondent is ordered to pay the Claimant the further sum of £5.80 gross in respect of an outstanding redundancy payment;

(2) the complaint as to the under-payment of notice pay is well founded and the Respondent is ordered to pay the Claimant the further sum of £5.80 gross in respect of an under-payment arising from the calculation of notice pay;

(3) the complaint as to the under-payment of the protective award is well founded and the Respondent is ordered to pay the Claimant the further sum of £9.28 gross; - 1 - Case Numbers: 1304710/2018 & Others 1304538/2020 & Others

(4) the complaint as to the under-payment of holiday pay is well founded and the Respondent is ordered to pay the Claimant the further sum of £374.94 gross.

[3]In relation to the Claims of Mrs Magda Perduta-Ciecierska, the complaint as to the under-payment of holiday pay is well founded and the Respondent is ordered to pay the Claimant the further sum of £461.29 gross.

[4]In relation to the Claims of Mr Mariusz Sowa:(1) the complaint as to the under-payment of a redundancy payment is well founded and the Respondent is ordered to pay the Claimant the further sum of £140.62 gross in respect of an outstanding redundancy payment;

(2) the complaint as to the under-payment of notice pay is well founded and the Respondent is ordered to pay the Claimant the further sum of £140.62 gross in respect of an under-payment arising from the calculation of notice pay;

(3) the complaint as to the under-payment of the protective award is well founded and the Respondent is ordered to pay the Claimant the further sum of £562.48 gross.

[5]In relation to the Claims of Miss Alina Szazi, the complaint as to the under-payment of notice pay is well founded and the Respondent is ordered to pay the Claimant the further sum of £73.08 incorrectly deducted in respect of entitlement to benefits. Employment Judge Kenward Dated 31 August 2023 Schedule 1 1304789/2018 & 1304618/2020 Mr Ovidiu-Cosmin Gheorghita 2 1304822/2018 & 1304651/2020 Miss Stephanie Kirby 3 1304859/2018 & 1304688/2020 Mrs Magda Perduta-Ciecierska 4 1304887/2018 & 1304716/2020 Mr Mariusz Sowa 5 1304896/2018 & 1304725/2020 Miss Alina Szazi - 2 -

Conclusions

[1]Judgment has previously been given in relation to the above Claims as set out above. Oral reasons were given at the time of the hearing.

[2]On 29 September 2023, the Respondent e-mailed the Tribunal with a request for written reasons. The e-mail suggested that the Tribunal may have issued a copy to an incorrect e-mail address. The request for written reasons was made on the basis that the written Judgment “does not include details such as what wage rates were used, or whether all payments already paid from the National Insurance Fund were taken into account” so that the Respondent “asks the Tribunal to provide full written reasons to clarify how the awards were calculated”.

[3]The request for written reasons was forwarded to me by the Tribunal on 10 November 2023. I apologise to the parties for the delay in dealing with the matter. Proceedings

[4]SP Group Limited entered administration on 24 July 2018 with Mr Matt Ingram of Duff & Phelps Limited as the appointed Administrator.

[5]In the subsequent case of Adams and others v SP Group Limited (in administration) (“SP”) and the Secretary of State (at that point the Secretary of State for Business Energy and Industrial Strategy) (case numbers 1304710/18 & others), various former employees of SP Group Limited made Claims for various payments from the National Insurance Fund including protective award payments.

[6]On 20 September 2019, the Claimants were awarded a protective award of 90 days by the Tribunal. The Judgment was sent to the parties on 15 November 2019.

[7]It was subsequently asserted that many Claimants did not receive payment (or payment in full) of the protective award within three months of the Judgment contrary to section 192 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A 1992”) and section 188 of the Employment Rights Act 1996 (“ERA 1996”) (and / or other sums due).

[8]These Claimants issued enforcement proceedings on 3 March 2020 in the name of the lead Claimant, Caroline Adams.

[9]SP did not submit a response. The company has been dissolved and the proceedings were formally dismissed against SP on 27 September 2022. As such, the Claims proceeded against the Secretary of State only. These proceedings were combined with remaining cases from the original Claim.

[10]On 30 March 2020, the Secretary of State (the “Respondent”) submitted a Response. Essentially, the Response contends that payments were made to the Claimants from the National Insurance Fund by the Redundancy Payments Office (on behalf of the Secretary of State) in accordance with the Employment Tribunal’s Judgment (in case numbers 1304710/2018 and others) on the basis of the validated information available and “where the individual claimant or their representative has co-operated with the Redundancy Payments Service”. In so far as it was being alleged that there was a shortfall in any sums paid, it was stated that the respondent was unable to comment any further (at that point in time) on the sums in dispute “as the ET1 provides no further details regarding the specific disputes” so that further information was being sought.

[11]Further information had been provided and the Respondent had set out its revised position in an e-mail to the Claimant’s Solicitors dated 3 March 2023 (page 32 in the Bundle)

[12]The remaining cases were subsequently listed for a hearing to determine the Claims and decide what compensation or other remedy should be awarded if the Claims succeeded.

[13]Where I was satisfied that sums were due, I was asked by the Claimant’s Solicitor to give Judgment for the gross sums due on the basis that any such sums due will then be subject to deductions by the Secretary of State. It may be that this is by way of a notional 20% for tax, or it may be that a different precise figure is available. I was content to adopt this course of action in the absence of having any figures which would enable the Tribunal to make a calculation of the appropriate amounts to be deducted to arrive at a net figure (so that the Tribunal could have done little more than adopt the 20% notional figure which may or may not be right). Relevant law

[14]Section 166 of the Employment Rights Act 1996 (“ERA 1996”) contains a scheme whereby an employee may apply directly to the Secretary of State for a redundancy payment out of the National Insurance Fund (“NIF”). Similar provisions also apply to other payments owed by the employer (see ERA 1996 section 182).

[15]The principal debts which are payable from the NIF, in addition to any redundancy payment, are listed in ERA 1996 section 184(1) and include:(1) arrears of pay up to a maximum of eight weeks;

(2) minimum statutory notice pay (in accordance with ERA 1996 section 86);

(3) holiday pay up to a maximum of six weeks in accordance with ERA 1996 section 185(a).

[16]A protective award will give rise to an entitlement to wages for the protected period so that the protective award will potentially be recoverable from the NIF as arrears of pay.

[17]Where any question arises as to the employee’s entitlement to a payment, as above, from the NIF, or the amount of the payment claimed, the matter can be referred to an Employment Tribunal pursuant to ERA 1996 sections 170 and 188.

[18]In the present case, the areas of dispute identified relate to the amount of any payment.

[19]Accordingly, I dealt with the disputed issues in relation to the remaining Claims as set out below. Ovidiu-Cosmin Gheorghita

[20]Payments had been made which were based on a figure of £351.53 per week as this was the rate verified by the Insolvency Practitioner concerned in the RP14A form submitted. However, I was satisfied that the correct rate of pay was £366.38 as shown by the Claimant’s contract (£9.77 x 37.5 = £366.375).

[21]This Claimant had received a gross amount for the protective award of £2,812.24 (8 x £351.33) but this should have been £2,931.04 (8 x £366.38), therefore the payment was £118.80 too low.

[22]The Claimant received a gross amount for redundancy pay of £703.06 (2 x £351.33) but this should have been £732.76 (2 x £366.38) therefore the payment was £29.70 too low.

[23]The Claimant received a gross amount for notice pay of £703.06 but this should have been £732.76 (2 x £366.38), so this payment was also £29.70 too low.

[24]Additionally, this Claimant was not entitled to benefits, yet he had £73.08 gross deducted from his notice pay, despite having been unable to claim benefits. The Claimant had provided a Statement of Evidence confirming this to be the position. I accepted this unchallenged evidence and accepted that the sum paid to him by the Respondent should not have been subject to the deduction made so that £73.08 gross was due.

[25]During the hearing, I raised the issue as to the correct net figures. I was told that the Secretary of State would normally deduct a flat 20%. This can be seen in the case of this Claimant. Deducting the sum of the benefits of £73.08 from the gross figure of £703.06 results in the figure of £629 98, from which it can be seen that the deduction of £126 made for notional tax is effectively 20% of £629.98. It also follows that the figure of £73.08, which I was being asked to reinstate was a gross figure.

[26]Accordingly, I am satisfied that the total amount owing to the Claimant is £251.28. Stephanie Kirby

[27]This Claimant’s payments had been based on a figure of £423.94. However, the correct rate of pay was £425.10 on the basis that, according to the Respondent, this is the rate verified by the Insolvency Practitioner concerned in the RP14A form submitted (which seems to be accepted by the Respondent in its e-mail to the Claimant’s Solicitors sent on 3 March 2023 (page 32 in the Bundle for the hearing).

[28]The Claimant was paid a gross amount for redundancy pay of £2,119.70 but, on the figures set out above, this should have been £2,125.50 therefore the payment was £5.80 too low.

[29]The Claimant received a gross amount for notice pay of £2,119.70 but, on the basis set out above, this should have been £2,125.50, so that the payment was £5.80 too low.

[30]The Claimant was paid a gross amount of £3,391.52 (capped at eight weeks’ pay) for the 90- day protective award of £3,391.52, but on the figures set out above, this should have been £3,400.80, so that the payment was £9.28 too low. (49-50).

[31]The Claimant claimed that she should have been paid 4.41 days’ holiday pay amounting to £374.94 (£425.10 x 4.41). This was the amount of annual leave outstanding on the form completed by ERP Solutions which was the source of the information which would have been used by the Insolvency Practitioner in completing the RP14A form. In any event, the Respondent’s e-mail of 3 March 2023 was silent as to holiday pay. I accepted that the Claimant was owed holiday pay calculated in this way. Accordingly, I awarded the Claimant the gross figure of £374.94.

[32]Accordingly, I was satisfied that the total amount owing to the Claimant was £395.82. Magda Perduta-Ciecierska

[33]This Claimant worked four days a week. She says that her rate of pay was £365.38 per week It was also accepted as the applicable weekly figure by the Respondent.

[34]The area of dispute related to the amount of annual leave outstanding as at the date of termination of employment. The Claimant asserts that she was owed 7.34 days’ holiday and therefore she should have received a gross payment for holiday pay of £670.47. The figure for the Claimant being owed 7.34 days accrued holiday comes from the information on the RP14A form (albeit on the form completed by ERP Solutions at page 51 in the Bundle). The sum is calculated as 365.38 / 4 = £91.345 x 7.34 = £670.47. By contrast, the Redundancy Payments Service has paid a gross sum of £209.18 (pages 52-53). Therefore, the Claimant claimed that she was owed a further gross sum of £461.29.

[35]The Respondent explained in its e-mail of 3 March 2023 that its calculation was based on 2.29 days’ holiday pay. It is further explained that this is based on figures from the RP1 form where the Claimant gave 1 January as the start of her annual leave year. The calculation used by the Respondent (pages 32 to 33) was 31 days’ contractual leave / 208 business days x 116 days (presumably business days) elapsed in the year, minus 15 days taken = 2.29 days.

[36]Ultimately, I concluded, on the balance of probabilities, that the information which had been provided for the RP14A form was more likely to be reliable than that on the RP1 form. The information in the RP14A form had been gathered by a professional firm with experience of providing such information for the RP14A form. By contrast, the RP1 had been either completed by an individual, or completed on the basis of instructions from an individual, for whom English was not her first language, and who was not used to completing such forms.

[37]The Claimant’s case was that her finish date was 1 August 2018. It was also being suggested that she had had two weeks’ holiday prior to this (which would have amounted to 8 days off work). The RP1 form had been completed to state that she had not carried over holiday from the previous year, but it was actually being suggested that it was possible that she had carried holiday over from the previous leave year, although there was no other confirmation as to this. It was also not entirely clear whether she had put 1 January 2018 forward on her RP1 form as the start of her annual leave year (which was the information being requested) or whether she had simply been calculating her holiday entitlement by reference to the calendar year. It was noted that the anniversary of the commencement of employment was 2 November. She had then answered “15” to a question as to the number of days of holiday that she had taken that year (including bank holidays). Underneath that, in answer to a question as to whether SP Group Limited had paid her for these days, she answered in the negative. On the face of it, if this information was correct, she would have been entitled to outstanding pay in respect of those 15 days (which would amount to an entitlement exceeding the calculations being put forward by both sides). It seemed more likely that the 15 days had been put forward as a calculation of her holiday entitlement to the date of the termination of her employment. By contrast, the information from the RP14A form (albeit on the form completed by ERP Solutions at page 51) appeared to be completely clear in confirming that the Claimant had accrued holiday of 7.34 days owing to her at the termination date.

[38]In the circumstances, I accepted the submission of the Claimant’s Solicitors that the information from the RP14A form was likely to be the best evidence available, the information on this form being to the effect that the Claimant was owed pay in respect of 7.34 days holiday. On the calculations set out above, this amounted to £670.47 gross. She had been paid in respect of £209.18 of this gross figure (albeit with deductions being made from the sum of £209.18) so that the amount outstanding was £461.29 gross.

[39]I am therefore satisfied that the claimant is owed a further £461.29 gross. Mariusz Sowa

[40]In this case, the Respondent had agreed in its email of 3 March 2023 that the Claimant was owed further money. The payments previously paid had been based on the Claimant’s stated wage rate of £286.89, but the Respondent accepted that the RP14A form supported a higher weekly rate of £336.58, so that it was stated that the payments due had been re-assessed on this basis so that the Claimant was due a further sum of £99.38 in respect of redundancy pay, £81.73 in respect of notice pay and £422.80 (after deductions) in respect of arrears of pay. However, the case proceeded on the basis that these payments had not yet been received.

[41]I was satisfied that the correct rate of weekly pay was actually £357.20 based on the monthly rate shown in the payslips (pages 54 and 55) of £1547.87.

[42]The Claimant had received a gross amount for redundancy pay of £573.78 (2 x £286.89) (pages 56 and 57) but this should have been £714.40 (2 x £357.20) so that the payment was £140.62 too low.

[43]The Claimant had received a gross amount for notice pay of £573.78 (2 x £286.89) (pages 58 and 59) but this similarly should have been £714.40 (2 x £357.20) so therefore the payment was £140.62 too low.

[44]The Claimant had received a gross amount for the protective award of £2,295.12 gross (pages 60 and 61) but this should have been £2,857.60 (8 x £357.20), so therefore the payment was £562.48 too low.

[45]Accordingly, I was satisfied that the total amount owing to the Claimant is £843.72. Alina Szazi

[46]The Claimant had £73.08 deducted from the payment made by the Respondent in respect of notice pay (pages 62 and 63) on the basis that this figure represented benefits that she may have been entitled to but did not claim.

[47]However, the Claimant’s evidence in her Statement confirmed that she had applied for benefits but was told that she was not eligible. I accepted this unchallenged evidence and accepted that the sum paid to her by the Respondent should not have been subject to the deduction made so that £73.08 gross was due.

[48]Accordingly, I was satisfied that there had been an underpayment of the notice pay in the sum of £73.08 gross. Employment Judge Kenward 23 January 2024 SCHEDULE 1 1304710/2018 & 1304538/2020 Ms Caroline Adams 2 1304789/2018 & 1304618/2020 Mr Ovidiu-Cosmin Gheorghita 3 1304822/2018 & 1304651/2020 Miss Stephanie Kirby 4 1304859/2018 & 1304688/2020 Mrs Magda Perduta-Ciecierska 5 1304887/2018 & 1304716/2020 Mr Mariusz Sowa 6 1304896/2018 & 1304725/2020 Miss Alina Szazi