Ms C Bagley and Others v Cross Transport Ltd (in administration) and The Secretary of State for Business Energy and Industrial Strategy: 1305785/2023 and Others
EMPLOYMENT TRIBUNALS
Case No 1305785/2023
Between
Ms Chloe Bagley and othersClaimantCross Transport Ltd (in administration) and The Secretary of State for Business Energy and Industrial StrategyRespondent
Before
Employment Judge BattisbyDate 8 January 2025
JUDGMENT
[1]There being no recognised trade union or elected employee representatives, the claimants have standing to bring this claim.[2]The complaint that the first respondent failed to comply with a requirement of sections 188 and 188A of the Trade Union and Labour Relations (Consolidation) Act 1992 is well-founded.[3]The tribunal makes a protective award in respect of the 14 claimants, who were dismissed as redundant on or after 8 June 2023, and orders the first respondent to pay each of them remuneration for the protected period of 90 days beginning on 8 June 2023.
REASONS
[1]By a claim form presented in time on 5 September 2023 on behalf of Ms Bagley and 13 others, various claims were brought against Cross Transport Limited, which entered administration on 5 June 2023. All claims, except those for protective awards, were dismissed on withdrawal by judgments dated 11 June 2024.[2]With the consent of the claimant and with neither respondent objecting, it was directed that the hearing of the claims for protective awards should be heard on the papers only.[3]I received an electronic bundle of documents numbering 79 pages including the index together with a bundle of the statements made by each of the fourteen claimants. Within the notice of hearing, permission had been given to the parties to produce written representations, and I received written submissions from the claimant running to 4 pages dated 24 December 2024.
The law
[4]Under sections 188 and 188A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992), 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 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.[5]The consultation shall begin in good time and in any event, at least 30 days before the first of the dismissals takes effect in cases where the employer is proposing to dismiss between 20 and 99 employees.[6]Where it is alleged that an employer has failed to comply with the consultation requirements, the appropriate representatives or an affected employee may bring a complaint to a tribunal who, if the complaint is well – founded, shall make a declaration to that effect and may make a ‘protective award’ covering the employees affected by the failure – section 189 TULR(C)A 1992. The ‘protective award’ is remuneration for the protected period of up to 90 days[7]Under section 189(3), (4) and section 190 TULR(C)A 1992, The tribunal may make an award of up to 90 days’ pay, with the length of the period determined by what is just and equitable in all the circumstances having regard to the seriousness of the employer’s failure to comply with the above statutory requirements. The award is calculated as starting on the day the first dismissals took effect. The award will identify the description of employees to whom it applies, who will be those employees who have not been consulted properly either by their representatives or directly with themselves.[8]Where an employee brings a claim individually they only do so for themselves: the EAT in Independent Insurance Company Ltd v Aspinall and another [2011] IRLR 716 held that an employee bringing a claim in an individual capacity could not be treated as doing so in a representative capacity for other employees in a similar position to their own.[9]The principles for determining the size of a protective award are set out in Susie Radin Limited v GMB and others [2004] EWCA Civ 180. The purpose of the award is to provide a sanction for the employer’s breach of its obligations and is not to compensate the employees for the loss suffered in consequence of the breach. The starting point for the compensation should be 90 days when there has been no consultation and only reduced if there are any mitigating factors justifying a reduction to the extent the Tribunal considers appropriate. It is important to note that, even if the required consultation is only for 30 days, the starting point and maximum protected period is still 90 days. The Tribunal is given a wide discretion to award what is just and equitable, but the focus should be on the seriousness of the breach.
Findings of fact
[10]The first respondent was a road haulage company operating from Halls Hall, Faraday Avenue, Birmingham B46 1AL. It ceased to trade on 2 June 2023 and, at the time, there were 55 employees including the claimants. The claimants were mainly lorry drivers, but a number were employed in other roles. All 55 employees were sent home on 2 June and the Joint Administrators were appointed on 5 June 2023.[11]The first respondent had made the decision to make all employees redundant on 2 June 2023 with immediate effect (due to the first respondent having ceased to trade), but none of the employees had been notified of this. Once the Joint Administrators became aware, they issued a letter to all employees (including the claimants) on 8 June 2023 confirming that their employment had been terminated by reason of redundancy with immediate effect.[12]Prior to dismissal there had been no consultation with any of the employees regarding the proposal to make them redundant. There was no recognised trade union in place nor any pre–existing representative authorised to undertake consultation on behalf of any employees and no steps had been taken to elect any employee representatives. Submissions[13]The administrators of the first respondent consented to the continuance of the claims. None of the facts are disputed by them. They have not put forward any special circumstances to mitigate the extent of any protective award. They say it was inevitable as a result of the cessation of trade, and they would have made the same decision as was made on 2 June upon their appointment on 5 June[14]The second respondent neither consented to nor opposed the claims.[15]The claimants contend for a maximum protective award of 90 days as there have been serious breaches and no mitigation.[16]The parties ask that any protective award should not be quantified in monetary terms so each individual claim can be properly considered and calculated after the judgment has been issued.
Conclusions
[17]The first respondent was under a duty to undertake collective consultation under section 188 TULR(C)A 1992 given that it proposed to dismiss as redundant 20 or more employees at its establishment within a period of 90 days or less. There was a complete absence of any consultation.[18]Given that there was no trade union or other employee representatives, even if the first respondent had intended to consult, it had taken no steps to arrange for the election of employee representatives.[19]No excuse has been put forward for these serious failures to comply with the statutory requirements for collective consultation other than to say they were inevitable as a result of the first respondent’s cessation of trading. Nothing has been said of the circumstances leading up to the cessation of trading on 2 June 2023 that might have allowed me to consider exercising the tribunal’s discretion to reduce the protective award.[20]Accordingly, and following the guidance of the Court of Appeal in the Susie Radin case, I make a protective award of 90 days commencing on 8 June 2023. This will apply to all the claimants.[21]Recoupment applies.