Mr G Steventon and Others v Solair Ltd (in Voluntary Liquidation) and Secretary of State for Business and Trade: 1306640/2023 and Others
JUDGMENT
The Employment Tribunal Procedure Rules 2024 – Rule 22[1]The first respondent has failed to submit a response in relation to the claimants. In accordance with Rule 22 of the Employment Tribunal Procedure Rules 2024, the Tribunal has decided that a determination can be properly be made of the claim on the available material.[2]The first respondent has failed to comply with section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992 (“TULR(C)A”) as to consultation about proposed dismissals. In addition, in respect of Mrs Brookes’ claim (2602715/2023), the first respondent failed to comply with the requirements of section 188A of TULR(C)A in relation to the election of employee representatives.[3]The claimants’ claims in respect of the claimants listed in the Annex to this Judgment, other than Miss S Collins (1303020/2024), are well-founded and succeed.[4]Miss S Collins’ claim (1303020/2024) was not brought within the required time limits and therefore does not succeed and is dismissed.[5]The Tribunal makes a protective award that the respondent shall pay remuneration to the claimant for the protected period specified in paragraph 6 below.[6]The protected period is 90 days from 25 September 2023.[7]The Recoupment Regulations apply to the award. Case No: 1306640/2023 and others 2REASONS
[1]The claimants are those set out in the Annex to these Reasons. They all bring claims for a protective award under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”). I note that Mr J Bailey (1308685/2023) also ticked the box on his claim form for notice pay (as well as claiming a protective award). In section 9.2 on his claim form (the compensation box) he said that he was seeking 12 weeks notice pay (with no reference in that box to a protective award). However reading the narrative set out in section 8.2 of his claim I consider that his claim is in reality about the lack of consultation and that his reference to notice pay is because he considers that he should receive 12 weeks’ pay by way of protective award (noting that there is no separate compensation set out in box 9.2 for the protective award claim). On that basis I have proceeded on the basis that all claims are for a protective award alone. I have also noted that Mr Stevenson (1306640/2023) provided information to the Tribunal in respect of his claim suggesting that he had received notice pay following the termination of his employment and therefore on the material available I would not have concluded that notice pay remained owing to any of the claimants (notwithstanding the fact that the liquidator letter dated 25 September 2023 to which I refer below suggested that the first respondent could not pay notice pay).[2]The claimants were all employed by the respondent from varying start dates to 25 September 2023, at which time they were all dismissed with immediate effect by reason of redundancy. They were all employed at the same establishment, namely on Pennington Close, West Bromwich, B70 8BG. The way in which the claimants described the address differed slightly between their various claim forms, however I find that they were all referring to the same establishment (and they all set out the same post code).[3]All of the claimants presented claims to the Employment Tribunal between 20 October 2023 and 26 February 2024. All of them were filed in the Midlands West Employment Tribunal save for Mrs Brookes (2602715/2023), whose claim was filed in the Midlands East Employment Tribunal but subsequently transferred to the Midlands West region. The first respondent has failed to provide a response to any of the claims. The second respondent has subsequently been joined to the proceedings and has provided a response, neither supporting nor resisting the claimants’ claims, but setting out various matters it wishes the Tribunal to consider. Those matters have been taken into account. It was not clear to me from the available material whether the second respondent’s Grounds of Resistance had been specifically submitted also in relation the claim brought by Mrs Brookes (as that claim was still in the Midlands East region at the time that the other claims were served on the second respondent by the Midlands West region). However, I consider that Mrs Brookes’ claim relates to exactly the same matters as the other claims and that the same points would apply. Case No: 1306640/2023 and others 3[4]No consultation took place prior to that dismissal: the first time the claimants became aware of the possibility of redundancy was on 25 September 2023 when they were told that they were redundant. On the same date, a letter was sent to all known employees of the respondent entitled by Evolve IS, an outsourced insolvency service, titled “Solair Limited (the “Company”) – in Proposed Liquidation”. This letter explained that proposed joint liquidators had been authorised to act as agent of the first respondent in all employee related matters. It said that the recipients employment had ended that day by reason of redundancy. The letter went onto explain that the first respondent was not able to make certain payments to the individuals and explained how they could claim for these.[5]I find that all of the claimants were dismissed with immediate effect and without prior consultation or warning on 25 September 2023.[6]There are 20 claimants and therefore collective consultation of at least 30 days was required under section 188 of TULR(C)A. In addition, Mrs Brookes has provided a written witness statement in which she estimates that there were around 50 impacted employees, and Miss Collins estimated in her claim form that there were around 60 employees. I am therefore satisfied that the requirements for collective consultation were met and that the required period of consultation was 30 days.[7]I have considered whether, as set out in section 188(7) of TULR(C)A, there were any “special circumstances” such as to render it not reasonably practicable for the respondent to have complied with TULR(C)A. I conclude that there were not. In accordance with Clarks of Hove Ltd v Bakers’ Union 1978 iCR 1076, CA, a “special circumstance” is something exceptional, out of the ordinary or uncommon. Insolvency and/or administration is not of itself a special circumstance. Where the cause of the financial difficulties is in itself exceptional, out of the ordinary or uncommon, that would be relevant, however the Tribunal has not been provided with any information from the first respondent to suggest that this is the case.[8]These claims have been brought by the claimants as individuals and not by an employee representative. The only claimant who has provided any information about the situation in this regard is Mrs Brookes. Within her claim form she said “The company does not, as far as the claimant is aware, recognise any trade union for the purpose of collective bargaining. The respondent failed to consult or inform the employees or their appropriate workplace representative as prescribed in s 188(1B)(b) of the Trades Union and Labour Relations (Consolidation) Act 1992 (TULRA) and failed to make any arrangement for the election or appointment of such representatives.”[9]In her written witness statement dated 17 February 2025, Mrs Brookes said “9. As far as I am aware, no Trade Union was recognised by the Respondent.[10]As far as I am aware, the Respondent did not provide any opportunity for employees to elect employee representatives for the purposes of consultation”. Case No: 1306640/2023 and others 4 10. Taking this into account, along with the fact that the redundancies were announced to all staff at the same time without warning, I am satisfied that: a) there was no recognised trade union b) there was no group of employee representatives who had authority to receive information and to be consulted about the proposed dismissals on the employees’ behalf; and c) the respondent failed to make arrangements for the election of employee representatives under section 188A of TULR(C)A.[11]Therefore, in accordance with section 189 of TULR(C)A, I conclude that those who were made redundant are entitled to bring a claim for a protective award as individuals. In respect of Mrs Brookes specifically (2602715/2023), she also brings a complaint for failure to make any arrangement for the election or appointment of appropriate representatives, and that complaint succeeds. The other claims bring claims only related to the lack of consultation.[12]I have checked the dates on which ACAS early conciliation started and ended for each claimant, along with the date on which they submitted their claim form. In all cases other than Miss Collins, the claim form was submitted within three months of the date on which their employment ended, and all of the claimants engaged in ACAS early conciliation before presenting their claims. In respect of Miss Collins however, she did not commence ACAS early conciliation until 15 February 2024. By that time, her claim was already out of time, given the termination date of 25 September 2023 which applied to all of the claimants. She should therefore have started early conciliation no later than 24 December 2023. No reason has been provided as to why it would not have been reasonably practicable for her to bring that claim within the required time limits and therefore I do not extend time in her case. Therefore, Miss Collins’ claim (1303020/2024) is unsuccessful and is dismissed.[13]For the reasons set out above, I therefore declare that there has been a failure to comply with section 188 of TULR(C)A.[14]I consider that it is appropriate to issue a protective award against the first respondent (save in respect of Miss Collins due to her claim being out of time). In accordance with section 189 of TULR(C)A, this should be for a protected period of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the respondent’s default, but shall not exceed 90 days.[15]Protective awards are punitive rather than compensatory (Susie Radin Ltd v GMB and ors ICR 893, CA) and the first respondent’s inability to pay the award is not determinative. In considering the level of award, it is appropriate to start at the maximum of 90 days and only reduce it where there are mitigating circumstances rendering it just and equitable to do so.[16]I have considered whether the first respondent’s financial situation and the fact that it is in voluntary liquidation renders it just and equitable to reduce the protective Case No: 1306640/2023 and others 5 award. I have concluded that it does not. The first respondent has not provided any information to show that it would not have been possible to carry out some form of consultation prior to making the employees redundant. I therefore make a protective award that the first respondent is ordered to pay remuneration for the protected period which begins on 25 September 2023 and is for a period of 90 days. For the avoidance of doubt, the protected period of 90 days applies to all of the claimants other than Miss Collins, whether or not they also specifically raised a separate complaint of failure to make arrangements for the election of employee representatives as I consider that the failure to consult alone warrants a protective award of 90 days.[17]This Judgment applies only to the claimants set out in the Annex (save for Miss Collins as outlined above) and for the avoidance of doubt does not apply to any other individual who may also have been dismissed by the first respondent on 25 September 2023.[18]In accordance with Regulation 5(1) of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996, the Recoupment Regulations apply to this award.