Mr M Kok v Aviation Staffing Ltd and Secretary of State for Business and Trade: 1305789/2018
REASONS
[3]The Claimant, a pilot, was employed by ASTA Staffing Ltd (Aviation Staffing Ltd) and flew for Primera Air from January 2018. The airline went into administration on the 2nd October 2018 with the Claimant being made redundant the day after on the 3rd October 2018 (Claimant’s ET1) Claims by Aviation Staffing ltd employees are being dealt with by Sullivan Associates based in Malta who is the liquidator for this company. The Claimant also lodged the claim with the Insolvency service under case number CN000623185. The Claimant was pursuing a claim against the former employee under provisions of section 182 of the Employment Rights Act 1996 namely a Protective Award. The Secretary of State (‘SOS’) was joined in the proceedings as an interested party though described as the 2nd Respondent this is technically not correct. The interested party acts as statutory guarantor to Part XII of the 1996 Act and is not the former employee nor the cause of the tribunal application. Additionally, by virtue of Section 185(b) of the 1996 Act the SOS has no authority to make payments in respect of a Protective Award unless the Tribunal has made a judgment confirming that such an award has been made against the employer. For those reasons the SOS neither supports nor opposes the claim. The Claimant sought to rely on the provisions of S.188 of the Trade Union and Labour Relations (Consolidation) Act 1992 namely that an employer is required to consult ‘appropriate representatives’ of employees who may be affected by dismissals or measures taken in connection with them. The 1st Respondent states it was unable to fully comply with the requirement given the special circumstances the company was in rendering it not reasonably practicable to comply. I read the bundle consisting of 151 pages and I heard evidence from Mr Hafsteinsson who was a director of Aviation Staffing Ltd. I also had the benefit of submissions from both representatives. Summary of Facts[4]Neither party need to hear from the Claimant Mr Kok. His statement was found at page 36 in the bundle. He confirmed he commenced work as an airline pilot with Aviation Staffing Ltd on the 8th January 2018 providing service to Primera Air. On the 2nd October 2018 Primera Air went into administration, and they were the only clients of Aviation Staffing Ltd. On the 3rd October 2018 the Claimant was dismissed from his employment without any form of consultation.(The Claimants statement)[5]The complaint was that the former employer failed to consult affected employees as required under S.188 TULRA 1992 and the Claimant asked the Tribunal to make a declaration to that effect.[6]The 1st Respondents relied on the evidence of Alexander Gudbjartsson (AG) a director of Aviation Staffing Ltd and Gudmundur Hafsteinsson (GH) another director. They had both prepared witness statements and Mr Hafsteinsson gave evidence at the hearing. AG stated that Primera was their only client. He states that in spring 2018 he became aware of delivery problems with new aircraft by Primera but that Aviation Staffing Ltd were assured that this was not an issue moving forward. He outlined the fact that his business partner GH had a meeting with Primera in September 2018 and was reassured there were no financial issues. Primera stated there would be a push in recruitment given the growth prospects of Primera. On the 27th September a meeting took place which GH attended. This was a meeting organised by Primera. It took place at Novotel in Stansted UK. Aviation Staffing Ltd were reassured by Primera that it had made financial agreements with its bank and its outlook was good. There were some issues with the payroll over the weekend. On the 1st October 2018 Primera grounded all flights and stated they were filing for bankruptcy. This came as a total shock to Aviation Staffing Ltd. All contracts with staff were terminated either on the 2nd October or the 3rd October 2018. The dates are not particularly clear but nothing really turns on whether the redundancies were on the 2nd or the 3rd of October.[7]In his oral evidence GH confirmed his written evidence.The Law
[8]If a tribunal finds that an employer has acted in breach of S.188 of the Trade Union and Labour Relations (Consolidation) Act 1992, it must make a declaration to that effect and may make a ‘protective award’ — S.189(2). A protective award is an award of pay to those employees who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and in respect of whom the employer has failed to comply with the requirements of S.188-188(3).[9]Section 188(1) of the Trade Union and Labour Relations (Consolidation ) Act 1992 states that ‘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’.[10]There is a ‘defence’ open to employers that have failed to comply fully with the information and consultation requirements of S.188 of the Trade Union and Labour Relations (Consolidation) Act 1992. S.188(7) provides that if there are ‘special circumstances which render it not reasonably practicable’ for an employer to comply with a requirement to:• consult in good time and within the applicable minimum period (S.188(1A)• consult about ways of avoiding or reducing the dismissals and mitigating their consequences (S.188(2), or• disclose information to the appropriate representatives for the purposes of consultation (S.188(4), the employer need only take such steps towards compliance with that requirement as are reasonably practicable in the circumstances. The onus is on the employer to show both that there were special circumstances and that it took all reasonably practicable steps — S.188(6)Conclusions
[11]The 1st Respondents have pleaded special circumstances and state they could not comply due to the overnight collapse of the only client the company had. There was no pre notice of the collapse and no other streams of income. I agree with this. The evidence would suggest that Aviation Staffing Ltd had very little to be suspect about the financial affairs of Primera Air. There had been some payroll delay earlier in the year but there was a meeting just prior to Primera’s collapse and GH was assured there was nothing to be concerned from a financial perspective. I was impressed by the evidence of GH who was clear that if he had known of the true situation then he would not have had the meeting on the 27th September 2018. There was a further issue over payroll later in the week but I accept that it came as a total shock to Aviation Staffing Ltd when Primera went bankrupt on the 1st October leaving them with no option to make the redundancies. There was simply no time to consult with its staff who were at locations all over Europe and its unclear what it would have achieved given the catastrophic series of events. These were unforeseen and special circumstances which gave the 1st Respondents no time to comply with the act and the claimants claim for a Protective Award fails and is dismissed.[12]Claims regarding arears of pay, holiday pay had been filed by the Claimant with the insolvency service. Paragraph 16 of the Claimants statement made it clear that the claim was amended on the 7.7.22 to reference the claim for the protective award and that remains the outstanding claim. The protective award claim was the only one pursued and therefore the outstanding claims are dismissed.Conclusions
[1]By application dated 1st October 2025 by way of email the claimant made an application for reconsideration of the Judgment dated 1st July 2025 and amended on the 28th September 2025. The application is therefore within time limits.The Law
[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”).[3]Under Rule 70 of the Rules, the Employment Tribunal may, either on its own initiative or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision may be confirmed, varied or revoked.[4]Rule 71 provides that an application for reconsideration under Rule 70 must be made in writing (and copied to all other parties) within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties.[5]The process by which the Tribunal considers an application for reconsideration is set out in Rule 72. Rule 72(1) provides that where an Employment Judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application shall be refused and the Tribunal shall inform the parties of the refusal.[6]Guidance for Tribunals on how to approach applications for reconsideration was given by Simler P in the case of Liddington v 2Gether NHS Foundation Trust UKEAT/0002/16/DA. Paragraphs 34 and 35 provide as follows: “34. […] a request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered. Tribunals have a wide discretion whether or not to order reconsideration. Where […] a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.”[7]The claimant’s application was received within the relevant time limit in accordance with Rule 71. The application has also been copied to the respondent.[8]The application for reconsideration appears to be made on the following Grounds, namely(i) the reconsideration is made in the interests of justice based on the fact that para 17 of the statement references the case of S Morby and Others who were claimants and pilots whose place of work and base was the same as the claimant Mr Kok. They were awarded a protective award. In hindsight this claim could have been joined with the other claims that were heard in 2019. On that basis this claimant would have been awarded a protective award.(ii) that the respondents suggested the respondents in the S Morby case were unrepresented when they were represented and had an opportunity to present the case on behalf of the respondent(iii) The claimant cannot seek written reasons of the S Morby case and has asked whether the respondents have these and disclose them.(iv) the outcome in this case does not align with the outcome in the S Morby case which was based on the same facts.[9]In relation to point(i) and generally the claimant is a disappointed litigant and is seeking to have a further attempt to re-argue his position having had a full opportunity at the previous hearings. It is not the purpose of reconsideration to allow a party to the opportunity to rehearse the arguments that have already been made and explored. It is a fundamental requirement of litigation there is certainty and finality. I do not have the written reasons in the S Morby case, and it would appear after a search that they do not exist. The previous judge in the S Morby case cannot be compelled to provide the written reasons, and I do not have the power to ask for them. The decision in the Kok case was reached on the available evidence provided in the bundle and after hearing evidence and submissions. I note that the respondents also provided examples (without any written reasons) of other cases based allegedly on the same facts and parties which resulted in the claimants claims for protective awards failing including 3 heard at West Midlands by EJ Butler in 2019. This highlights the fact that every case turns on its own evidence and different judges may come to different conclusions after reading and hearing similar evidence.(ii) I think this has been answered at point (i) above. Different judges may come to different conclusions on the same facts.(iii) and(iv) These have been answered at point (i).[10]If there was an error of law, this is a matter for appeal and not reconsideration. The claimant has not argued or identified an error of law.[11]This application does not raise any new information or which he could not have raised at the hearing which would make reconsideration necessary in the interests of justice.[12]In the circumstances the application for reconsideration is rejected on the basis there is no reasonable prospect of the judgment being varied or revoked. Accordingly, the application for reconsideration is therefore refused.