Mr A Scott v Westward Pathfinder (In Voluntary Creditors’ Liquidation) and others: 1400723/2018
JUDGMENT
The judgment of the Employment Judge sitting alone is that:[1]The complaint that the first respondent failed to comply with a requirement of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 is well founded.[2]The tribunal makes a protective award in favour of the claimant who was an employee of the respondent at its premises at Commercial House 11 The Strand Barnstaple Devon and who was dismissed as redundant on 24 November 2017 and orders the respondent to pay the claimant remuneration for the protected period of 90 days beginning on 24 November 2017.[3]The claimant’s remaining claim in respect of pension contributions which were deducted but withheld is dismissed on withdrawal by the claimant because he will pursue that claim through the second respondent.REASONS
[1]This is a claim for a protective award brought by Mr Alvin Scott.[2]I have considered the evidence before me, both oral and documentary, and I have considered the legal and factual submissions made by and on behalf of the respective parties. I find the following facts proven on the balance of probabilities.[3]The first respondent Westward Pathfinder was a private company limited by guarantee and a registered charity. Its general aims were to assist the unemployed in obtaining employment. It was based at Commercial House[11]The Strand Barnstaple North Devon which was also its registered office. It had 39 employees who were almost exclusively tutors and administrative assistants. There were no recognised trade unions. There were no employee representatives, elected or otherwise. 4. The claimant Mr Alvin Scott was employed as a tutor by the first respondent from 13 January 2013 until his summary dismissal by reason of redundancy on 24 November 2017. The circumstances were these. On 23 November 2017 the first respondent emailed all of its employees to require them to attend a meeting on the following day, 24 November 2017. At that meeting the employees were told that the first respondent had entered voluntary liquidation and that all employees were dismissed by reason of redundancy with immediate effect. There was no consultation process of any sort. The employees were informed that the first respondent was unable to pay any of their redundancy related entitlements and neither would they pay any wages and expense claims for November 2017. The first respondent subsequently entered Voluntary Creditors’ Liquidation on 14 December 2017. 5. Having found the above facts I now apply the law. 6. The relevant law is in the Trade Union and Labour Relations (Consultation) Act 1992 (“TULRCA”). 7. Section 188(1) of TULRCA provides as follows: “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”. S188(1A) provides that "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 90 days, and(b) otherwise, at least 30 days, before the first of the dismissals takes effect. 8. S 188(2): provides that; “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.” 9. Section 188(4) provides: “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 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 any 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 the 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 are those agency workers are carrying out.” 10. Section 188(5) provides: “That information shall be given to each of the appropriate representatives by being delivered to them, or sent by post to an address notified by them to the employer, or in the case of representatives of a trade union sent by post to the union at the address of its head or main office.” 11. Section 189(1) provides that 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, and if the tribunal finds a complaint well founded under section 189(2) it shall make a declaration to that effect and may also make a protective award.[12]In this case the first respondent merely dismissed its employees including the claimant in significant breach of the above statutory provisions. In my judgment it is just and equitable to make a protective award for a period of 90 days in respect of the protected period which commences on 24 November 2017 for a period of 90 days. Employment Judge N J Roper Dated 11 June 2018 Judgment sent to Parties on ANNEX TO THE JUDGMENT (PROTECTIVE AWARDS) Recoupment of Jobseeker’s Allowance, income-related Employment and Support Allowance and Income Support The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations 1996, SI 1996 No 2349, Regulation 5(2)(b), SI 2010 No 2429 Reg.5. The respondent is under a duty to give the Secretary of State the following information in writing:(a) the name, address and National Insurance number of every employee to whom the protective award relates; and(b) the date of termination (or proposed termination) of the employment of each such employee. That information shall be given within 10 days, commencing on the day on which the Tribunal announced its judgment at the hearing. If the Tribunal did not announce its judgment at the hearing, the information shall be given within the period of 10 days, commencing on the day on which the relevant judgment was respondent to do so within those times, then the information shall be given as soon as reasonably practicable thereafter. No part of the remuneration due to an employee under the protective award is payable until either (a) the Secretary of State has served a notice (called a Recoupment Notice) on the respondent to pay the whole or part thereof to the Secretary of State or (b) the Secretary of State has notified the respondent in writing that no such notice is to be served. This is without prejudice to the right of an employee to present a complaint to an Employment Tribunal of the employer’s failure to pay remuneration under a protective award. If the Secretary of State has served a Recoupment Notice on the respondent, the sum claimed in the Recoupment Notice in relation to each employee will be whichever is the lesser of: (i) the amount (less any tax or social security contributions which fall to be deducted the refrom by the employer) accrued due to the employee in respect of so much of the protected period as falls before the date on which the Secretary of State receives from the employer the information referred to above; OR (ii) the amount paid by way of or paid as on account of Jobseeker’s Allowance, income-related Employment and Support Allowance or Income Support to the employee for any period which coincides with any part of the protective period falling before the date described in (i) above. The sum claimed in the Recoupment Notice will be payable forthwith to the Secretary of State. The balance of the remuneration under the protective award is then payable to the employee, subject to the deduction of any tax or social security contributions. A Recoupment Notice must be served within the period of 21 days after the Secretary of State has received from the respondent the above-mentioned information required to be given by the respondent to the Secretary of State or as soon as practicable thereafter. After paying the balance of the remuneration (less tax and social security contributions) to the employee, the respondent will not be further liable to the employee. However, the sum claimed in a Recoupment Notice is due from the respondent as a debt to the Secretary of State, whatever may have been paid to the employee, and regardless of any dispute between the employee and the Secretary of State as to the amount specified in the Recoupment Notice.