Mr J Dalladas and Others v Bournemouth Transport Ltd (In creditors voluntary liquidation) and Secretary of State for Business and Trade (Rule 95 Interested Party): 1401434/2024 and Others
EMPLOYMENT TRIBUNALS
Case No 1401434/2024
Between
Mr J Dalladas and OthersClaimantBournemouth Transport Ltd (In creditors voluntary liquidation) and Secretary of State for Business and Trade (Rule 95 Interested Party)Respondent
Before
Employment Judge DawsonIn person for claimantNot represented for respondentDate 30 April 2025
JUDGMENT
[1]The tribunal finds that the following claimants were within the scope of the protective award made by the Southampton Employment Tribunal on 13 November 2023 (Employment Judge Gray sitting with Mrs Gillick and Mr Richardson): Jason Dalladas, Hugh Cordeiro, Carlo Colangelo, Amanda Jones, Jeremy Croxall, Craig Gibbons, Gianmichele Orioni , Toby Smith, Maurizio Rullo, Paul Donald, Andre Da Cruz Pepe de Brito , Anna Rotella, Emanuele Sciroli, Richard Turnbull, Matthew Lewendon, Henryk Wierzbowski, Christopher Pickard , Zoe Pickard, Vincent Gomm.[2]The following claims made pursuant to section 192 Trade Union and Labour Relations (Consolidation) Act 1992 are well-founded and the first respondent is ordered to pay the sums specified to the claimants:a. Jason Dalladas, 1401434/2024, the sum of £9838.44b. Hugh Cordeiro, 1401457/2024, the sum of £9079.02c. Amanda Jones, 1401396/2024, the sum of£9,374.76d. Richard Turnbull, 1402343/2024, the sum of £10,080.[3]The remaining claims are dismissed on the basis that having regard to the date when they were presented to the tribunal, the tribunal lacks jurisdiction to consider them.
REASONS
[1]Paragraph 1 of the judgment identifies which claimants are covered by (or within the scope of) the protective award made on 13 November 2023.a. To the extent that the Secretary of State for Business and Transport requires clarification of whether the claimants were within the scope of the award (perhaps for the purposes of the Redundancy Payment Service), paragraph 1 provides that clarification.b. Paragraph 1 does not, however, order that any of the claimants should be paid money by the Secretary of State. If the Secretary of State does not pay the claimants sums due to them in respect of the Protective Award, they may be able to bring a separate claim to the tribunal under section 188 Employment Rights Act 1996- time limits apply. If such a claim is brought it will be determined on its merits at the time.[2]Paragraph 2 of the judgment is concerned with the claims against Bournemouth Transport Limited for sums which should have been paid to the claimants by Bournemouth Transport Limited because of the protective award that was made. It sets out which claimants have succeeded and how much they must be paid.[3]Paragraph 3 dismisses any claims that are not answered by paragraphs 1 and 2 of the judgment. Introduction and overview[4]The claimants in these cases, which have been heard together, all bring claims arising out of their redundancy in August 2022. They all bring claims only for a protective award and most of them are bus drivers. The only claimants who are not bus drivers are Mr Croxall, who was a cleaning supervisor, and Mr Cousins and Mr Thornton who were managers, as set out more fully below.[5]The matter came before Employment Judge Ferguson on 21 March 2025 when she gave helpful directions and set out the general position. She stated as follows: On 13 November 2023 the Tribunal (Employment Judge Gray and members sitting in Southampton) made a protective award in respect of certain former employees of the Respondent in respect of whom Unite the Union was recognised at its depot in Bournemouth. It also made protective awards in respect of certain individual claimants in respect of whom there was no recognised union or employee representatives. Because of the Respondent's insolvency, payment of the protective awards has been made by the Redundancy Payments Service (subject to the statutory cap) to those covered by the judgment. The present Claimants have not received protective awards and the RPS has advised that they need a judgment from the Tribunal in order for payment to be made by the RPS. The Claimants say they were not aware of the right to claim a protective award and/or the process for doing so until after they heard of the judgment given in November 2023. They each presented an individual claim form seeking a protective award (except for Mr Cousins and Mr Thornton who presented a multiple claim form) on various dates between 21 March 2024 and 3 December 2024. Some of the claim forms had indicated other types of claim (wages, notice pay) but all confirmed today that they only seek to claim a protective award. The liquidators of the Respondent have confirmed that they do not object to the claims proceeding, noting that they have been brought out of time and that the Tribunal would need to determine whether it has jurisdiction to consider them. No responses have been filed and the liquidators have confirmed they do not intend to take an active role in the proceedings. The Secretary of State has entered responses neither supporting nor resisting the claims, but asking the Tribunal to ensure the Claimants are eligible to bring the claims. He relies on his response as written submissions in respect of any hearing. The Claimants are in two different categories. 19 of the Claimants were bus drivers or supervisors. They were not members of the union, but they say Unite the Union was recognised by the Respondent in respect of their category of employment. They do not therefore have standing to bring a claim under s.189 of the Trade Union and Labour Relations (Consolidation) Act 1992 and their claims can only be under s.192 on the basis that(a) they are covered by the protective award made by the Tribunal on 13 November 2023 and(b) the Respondent has not paid them in respect of the protected period. Applying the time limit provisions in s.192 and the guidance of the EAT in Howlett Marine Services Ltd v Bowlam and ors 2001 ICR 595, the threemonth time limit started to run from the last day of the protected period. In this case that was 3 November 2022. The ordinary time limit therefore expired on 2 February 2023. However, it was confirmed in Howlett that it must be deemed "not reasonably practicable" to present a claim before a protective award has been made by the Tribunal. The issue in the present claims, therefore, is whether the claims were presented "within such further period as [the Tribunal] may consider reasonable" after the date of the Tribunal's judgment on 13 November 2023. This assessment may not be the same for all of the Claimants, given the different dates on which their claims were presented and depending on the reasons relied upon for not having brought the claims sooner. Mr Cousins and Mr Thornton were managers. They say there was no recognised union in respect of their employment. They therefore bring claims as individuals for a protective award under s.189 of the 1992 Act. The time limit for such a claim expired on 4 November 2022. Their claims were presented on 19 September 2024, i.e. almost two years out of time. The Tribunal therefore does not have jurisdiction to consider the claims unless it was not reasonably practicable for the complaint to be presented in time and it was presented within such further period as the Tribunal considers reasonable. It should be noted that Mr Cousins and Mr Thornton also did not obtain an early conciliation certificate. The claim form was nevertheless accepted so, following Abel Estate Agent Ltd and Others v Elizabeth Reynolds [2025] EAT 6, there may be no further jurisdictional issue and this matter would only need to be addressed if the Respondents applied to strike out the claim. The dates on which the claims were presented, the dates on the early conciliation certificates, and the job titles of each Claimant are set out in the Appendix.[6]She also gave directions, in particular, that All other Claimants (i.e. those bringing claims under s.192 of the 1992 Act) must each produce a witness statement limited to 1,500 words, setting out all the evidence they wish to give at the final hearing. This should cover(a) the factual basis for their argument that they are covered by the protective award made by the Tribunal on 13 November 2023 (i.e. evidence about their role and whether Unite the Union was recognised by the Respondent in respect of employees in that role) and(b) the time limit/ jurisdiction issue. Copies of the witness statement must be sent by email to Amanda Jones by 15 April 2025. Ms Jones must collate the statements into a single PDF and send it to the Tribunal and the Respondents by 22 April 2025. If any Claimant wishes to rely on any documents, they must attach them to the witness statement (subject to a maximum of 10 pages).[7]Unfortunately, the claimants have not fully complied with that direction. None of the witness statements states a factual basis for an argument that they are covered by the protective award made by the tribunal on 13 November 2023, in particular they have not given evidence as to whether Unite the Union was recognised by the respondent in respect of employees in that role. Conduct of the Hearing Reasonable Adjustments[8]None of the claimants identified any adjustments which they required to be made for the conduct of the hearing.
The evidence
[9]I was provided with witness statements from all of the claimants and all of the claimants, apart from Mr Colangelo, confirmed the truth of their statement following the taking of an affirmation or an oath. I asked some of the witnesses questions, none of the claimants sought to cross examine each other. I was provided with no other evidence.[10]At the Case Management hearing on 21 March 2025, EJ Ferguson had created a helpful schedule, which she attached as an appendix to her order which set out the dates when each claim was presented and the ECC dates. I have relied on that appendix and repeated as an appendix to this judgment.
The Law
[11]The following provisions of the Trade Union and Labour Relations (Consolidation) Act 1992 apply. When they are referred to below, they are simply referred to as section 189 or section 192. 189 Complaint … and protective award(1) 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, (c) in the case of failure relating to representatives of a trade union, by the trade union, and (d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant. …(2) If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award.(3) A protective award is an award in respect of one or more descriptions of employees- (a) who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and (b) in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188, ordering the employer to pay remuneration for the protected period.(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 …(5) An employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal- (a) before the date on which the last of the dismissals to which the complaint relates takes effect, or (b) during the period of three months beginning with that date, or (c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented during the period of three months, within such further period as it considers reasonable. (5A) Where the complaint concerns a failure to comply with a requirement of section 188 or 188A, section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (5)(b).(6) If on a complaint under this section a question arises... 192 Complaint by employee to employment tribunal (1) An employee may present a complaint to an employment tribunal on the ground that he is an employee of a description to which a protective award relates and that his employer has failed, wholly or in part, to pay him remuneration under the award. (2) An employment tribunal shall not entertain a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the day (or, if the complaint relates to more than one day, the last of the days) in respect of which the complaint is made of failure to pay remuneration, or (b) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months, within such further period as it may consider reasonable. (2A) Section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (2)(a). (3) Where the tribunal finds a complaint under this section well founded it shall order the employer to pay the complainant the amount of remuneration which it finds is due to him. (4) The remedy of an employee for infringement of his right to remuneration under a protective award is by way of complaint under this section, and not otherwise[12]In Independent Insurance Co Ltd v Aspinall [2011] ICR 1234, the EAT approved the following statement of the law contained within Harvey “TULRCA 1992 says that a protective award is 'an award in respect of … employees ... in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of s.188' (s.189(3)). On a purely literal construction, that provision might be read as giving any claimant the right to seek a protective award covering every employee in respect of whom the employer has failed to consult. But that is not so. The provision must be read in its context: a personal claimant may obtain a protective award for himself; a representative claimant may obtain a protective award for those whom he represents in the litigation. So, in the typical case, a trade union may obtain a protective award for all the employees in its bargaining unit (whether they are members of the union or not). But the award it obtains may not be stretched to cover those outside its bargaining unit, whether the outsiders are members of the union or not, and whether the outsiders are represented by some other person or union or not. It is a case of each to his own.” (My emphasis)[13]As explained by EJ Ferguson, Howlett Marine Services Ltd v Bowlam and others [2001] ICR 595 the Employment Appeal Tribunal made clear that in a case such as the present, it is not reasonably practicable to present a claim until a judgment had been made in respect of the protective award and, therefore, as stated by EJ Ferguson “The issue in the present claims, … is whether the claims were presented "within such further period as [the Tribunal] may consider reasonable" after the date of the Tribunal's judgment on 13 November 2023”.
The issues
[14]The issues were identified in the order in the Case Management hearing which took place on 21 March 2025, as set out above, although a formal list of issues was not created.[15]The claim forms presented to the tribunal do not particularise whether they are bringing claims under section 189 or section 192 of the Trade Union and Labour Relations (Consolidation) Act 1992. Whilst I wholly agree with EJ Ferguson that if the claimants (or any of them) fall within the bargaining unit in question they cannot be bringing a claim under section 189, I have considered whether, in reality, the claimants are seeking a declaration to confirm only that they are within the bargaining unit. The real point of this litigation is that the Secretary of State will not pay sums from the Redundancy Payment Fund without a judgment which makes clear that the claimants are part of the protective award (see paragraph 26 of the Case Management Order of EJ Ferguson). However, I consider I should follow the analysis of EJ Ferguson and, in respect of any claimants I consider are within the scope of the protective award, I should treat their claims as being under section 192. I have, however, made clear which claimants are covered by the protective award in case that assists the Secretary of State in deciding whether any of these claimants should be paid sums pursuant to section 184 Employment Rights Act 1996. I express no opinion as to whether those payments should be made since that point is not in issue before me.[16]In respect of any claims by claimants who are not within the scope of the protective award, the claims must proceed under section 189 on the basis they are bringing their own claim for a protective award.[17]The time limits for bringing each of those claims is different. As set out in the law which has been cited above, for a claim under section 189 it is necessary for the claims to be brought within 3 months of the last of the dismissals to which the complaint relates unless it was not reasonably practicable to do so, in which case it must be brought within such period as the tribunal considers reasonable.[18]In the circumstances of this claim, having regard to the date of the judgment of Employment Judge Gray and members, a claim under section 192 must be brought within a reasonable period thereafter. For the sake of convenience I refer to that as the judgment of EJ Gray or the Protective Award judgment.[19]The first issue, therefore, which I must consider is whether or not the claimants (or any of them) fall within the scope of the protective award. If they do, I must then determine whether their claims were made within a reasonable period of the Protective Award judgment.[20]In respect of claimants who are not within the scope of the protective award, I must consider whether they have bought their claims within 3 months of the last of the dismissals (none of them have) or whether it was not reasonably practicable for them to do so and whether, if so, they have presented the claim within a reasonable period after the expiry of the 3 months.[21]A number of the claimants made reference to general fairness and the need for them to be treated equitably with union members. I must apply the legal tests set out above. It is not possible for me to grant judgment in favour of the claimants simply because they have not received the same amount of compensation as some of their colleagues. Moreover, it’s not appropriate for me to treat all of the claimants in this claim as being in the same position. Most of them presented their claims at different times and in different circumstances to each other. In respect of each individual claimant, I must assess the facts and reach a specific conclusion. To the extent that means that some claims succeed where others did not that might be thought regrettable, but it as a consequence of the legal tests which I must apply. General Findings of Fact[22]I repeat the introductory matter set out above and I find, since it is not in dispute, that all of the claimants except for Mr Croxall, Mr Cousins and Mr Thornton were employed by Bournemouth Transport Limited as bus drivers. All of the claimants were all employed at the Bournemouth location.[23]The Protective Award judgment of 13 November 2023 does not record which employees (or category of employees) Unite the Union was recognised in respect of at the premises in Bournemouth and it is necessary for me to make the appropriate findings myself.[24]The evidence of the claimants was that other bus drivers, who were their colleagues and who were part of Unite the Union, were covered by the Protective Award judgment. They have been paid sums of money pursuant to that award. Ms Jones told me, and I accept and find, that on the day that the drivers’ redundancy was announced, Janet Wall of the union stated that union members would be “covered” because they paid their union fees but implied that non-union members would not. When she was talking about union members, she was including the bus drivers. That is consistent with the evidence given to me by Mr Dalladas who told me that as far as he was aware those people who were in the union were bus drivers, the union was basically for bus drivers.[25]On the balance of probabilities, I find that it is more likely than not that the bargaining unit for which Unite the Union was recognised included all bus drivers and, therefore, the driver claimants in this case are covered by, or included in, the Protective Award judgment.[26]Mr Croxall told me that he considered that the position went beyond that and that union membership included all those employed in the engineering side of the respondent’s business (including the bus drivers) and the union negotiated on behalf of the engineering side of the business. In circumstances where the respondents have not attended to challenge the assertion of Mr Croxall (as recorded by EJ Ferguson within paragraph 29 of her Case Management Order) that he was part of the protective award, I accept his evidence and find that he was within the scope of the protective award.[27]For the reasons I set out below in respect of their particular circumstances, I do not find that Mr Cousins and Mr Thornton were part of the bargaining unit.[28]The claimants in this case told me, and I accept, that initially they were unaware of their ability to bring a protective award. I find that was the position in respect of all of the claimants for the following reasons:a. that was the claimants’ unchallenged evidenceb. they told me, and I accept, that the administrators (technically, I understand them to have been liquidators since the company entered into a creditor’s voluntary liquidation) advised them of their rights to claim for redundancy pay and pay in lieu of notice but did not make any reference to the ability to bring a claim for a protective award,c. the comment made by Janet Wall, above, gave the impression that to the extent there was a right to claim a protective award, it was only for members of the union.[29]I find that over time there was talk by other drivers about the fact that they were bringing a claim for a protective award. However, that talk was around, or after, November 2023 when the Protective Award judgment had been given. That was the evidence which I was given, consistently, by the claimants in the course of this hearing. A number of the claimants then asked their bus driver colleagues whether they were entitled to such an award but were told that it was for union members (or words to that effect).[30]The information given by Ms Wall at the date of redundancy was only partly correct. The accurate position was that if the Unite the Union was recognised for the purposes of collective bargaining and brought a claim for a protective award then all employees within the bargaining unit, whether members of the trade union or not, obtained the benefit of the protective award. In this case that included all of the bus drivers and those on the engineering side of the business (which included the night supervisor, Mr Croxall).[31]I find that it was reasonable the claimants to be unaware of the possibility of seeking a protective award before 5 December 2023 when the Protective Award judgment was sent to the parties, given what the claimants had been told by the liquidators and Unite the Union. The Claims Individually[32]I turn, then, to make specific factual findings in relation to each of the claimant.[33]I address my findings by reference to the claimants in the order they appear in the schedule to EJ Ferguson's Case Management Order and as set out below. Mr Dalladas[34]I accept that Mr Dalladas was unaware of the ability to bring a claim in respect of a protective award until sometime after 2022. He stated he heard bus drivers talking about another claim but was told that it was to do with the union which he was not part of. I find that, he accepted what he was told. I accept that he became aware of the possibility of making a claim for a protective award towards the end of 2023 because a lot of drivers were talking about that award at that time. In his witness statement, Mr Dalladas states that he was aware that he should have claimed in a three-month timeframe which had now passed. In his evidence Mr Dalladas modified that position in his oral evidence to say that he had not worded his statement very well and he did not realise there was a 3 month time period that stage but did around the beginning of 2024 when he joined together with other drivers. He said a call was made in March or February 2024 to ACAS and at that point he submitted his claim.[35]Prior to the call with ACAS he said that he was told different things by people at the Redundancy Payment Service and the Yellow Buses’ union lawyer which resulted in confusion.[36]He submitted his claim on 21 March 2024.[37]I accept his oral evidence was factually accurate.[38]The question for me is whether he presented the claim within a reasonable period after the Protective Award judgment was given.[39]As stated, I find that it was reasonable for him to be unaware of the possibility to seek a protective award before 5 December 2023 when the Protective Award judgment was sent to the parties given what the claimants had been told by the liquidators and Unite the Union. Upon becoming aware of the possibility of making a protective award, it would take some time for Mr Dalladas to investigate the position and understand his rights. I mean no discourtesy in stating my finding that that he did not strike me as being particularly sophisticated and I do not consider that he would easily understand what is a technical area of law. He did act with expedition and did take steps to find out what his rights were.[40]In my judgment he presented his claim within a reasonable period of the Protective Award judgment and I find accordingly.[41]His claim under section 192, therefore, succeeds and he is entitled to be paid a sum equivalent to 90 days’ pay. He told me that he earned £548.58 per week and, therefore, I calculate he is entitled to a judgment of £9838.44 calculated by dividing the figure of £548.58 by 5 and multiplying it by 90. Mr Cordeiro[42]Mr Cordeiro says that in December 2023 he was made aware by colleagues that there was a protective award. He says that in January 2024 he started contacting the insolvency service alongside his colleagues and realised that his name was not on the list of people to whom a protective award would be made. The union solicitors refused to give any help or advice and ACAS was contacted in February 2024 to get the process moving. He describes Mr Dalladas getting advice from solicitors and eventually a claim being made via ACAS. His claim was presented on 26 March 2024.[43]This claim was presented 5 days after the claim of Mr Dalladas and for the reasons I have given in respect of the claim of Mr Dalladas, I find that this claim was presented within a reasonable period.[44]His claim under section 192, therefore, succeeds and he is entitled to be paid a sum equivalent to 90 days’ pay. He told me that he earned £504.39 per week and, therefore, I calculate he is entitled to a judgment of £9079.02 calculated by dividing the weekly figure by 5 and multiplying it by 90. Mr Colangelo[45]Mr Colangelo did not attend the hearing but did put in a witness statement. I note that EJ Ferguson recorded that he was unable to attend the previous hearing due to ill health but directed that if any witness was unable to attend this hearing, they should set out the circumstances in their witness statement. Mr Colangelo has not done that.[46]Mr Colangelo says that he was not told that he could claim, he was confused and that he did not know he could claim until he spoke to ACAS. I am willing to accept that evidence as being factually accurate.[47]However, he did not present his claim until 3 April 2024 and has not told me when he spoke to ACAS. I do not know what the passage of time was between speaking to ACAS and presenting his claim form or what the reason for that passage of time was. In circumstances where it is not clear to me why he has not attended the hearing I do not find that this claim was presented within a reasonable period of time after the Protective Award judgment.[48]Therefore although this claimant is covered by the protective award made by EJ Gray, the claim under section 192 fails because it was not presented within a reasonable period. Ms Jones[49]Ms Jones evidence gives scant information about why her claim was not presented earlier. She expanded upon the position in her evidence and I have recounted her evidence above about Ms Wall. In addition, Ms Jones told me, and I accept, that she wrote to Ms Wall who sent her an email on 14 March 2024 stating that around 50 non-union members had paid for a solicitor and that the claimant may be able to claim but she should take legal advice. She said that her uncle, who was in the union, told her on 29 February 2024 that he had got "his money" and that a claim had been made by non-union members. She contacted the “administrators” on 29 February who said there was nothing they could do for her and then she contacted the solicitor who had represented the 50 non-union members. They said that there was nothing they could do. She said that ACAS were extremely helpful on 22 March 2024. She notified ACAS of her claim, for the purposes of Early Conciliation on that day.[50]She presented her claim on 9 April 2024.[51]Thus it is apparent that she spoke to ACAS after Mr Dalladas had done so and after he had presented his claim form but I find that she acted reasonably and that her claim was presented within a reasonable period of the Protective Award[52]Her claim under section 192, therefore, succeeds and she is entitled to be paid a sum equivalent to 90 days’ pay. She told me that she earned £520.82 per week and, therefore, I calculate she is entitled to a judgment of £9,374.76 calculated by dividing the weekly figure by 5 and multiplying it by 90. Mr Croxall[53]Mr Croxall gives no dates in his explanation as to why his claim was presented late. He states that he started working for another company where a colleague told him about the protective award but only after "the court had already awarded union members the protective award". Thus that would seem to be in December 2023.[54]He presented his claim on 17 April 2024. He has given no real explanation for the delay between December 2023 and 17 April 2024, and, on the evidence, I do not find that this claim was presented within a reasonable period of time after the Protective Award judgment[55]Therefore, although this claimant is covered by the protective award made by EJ Gray, the claim under section 192 fails because it was not presented within a reasonable period. Mr Gibbons[56]Mr Gibbons, in his witness statement, said that no one had told him that he could claim for a protective award but he spoke to ACAS in February 2024 when he found out that he could. He had not been part of the union because he was saving up for a place to live with a mortgage and every penny counted. He presented his claim on 17 April 2024.[57]Mr Gibbons witness statement is very brief and does not provide any information as to why there was a delay between him speaking to ACAS and presenting his claim form. In my judgment if Mr Gibbons became aware of the ability to make a claim in February 2024 it cannot be said, on the evidence which I have seen, that he behaved reasonably in not presenting his claim until 17 April 2024. The claim should have been presented more quickly.[58]Therefore, although this claimant is covered by the protective award made by EJ Gray, the claim under section 192 fails because it was not presented within a reasonable period after the Protective Award judgment. Mr Orioni[59]Mr Orioni says that he attended a meeting on 5 August 2022 and listened carefully to all of the information available and although he was told about payments in respect of untaken holiday pay, notice pay and redundancy pay, a protective award was not mentioned. I accept that evidence.[60]He also says that when he sought advice from the union he was told that only members of the union were entitled to claim. In his evidence he clarified (consistently with the other witnesses) that he was referring to other drivers and that they said the protective award was something that could be applied for if you are part of the union.[61]He told me, and I accept, he became aware in January 2024 that a claim could be made when he heard others talking about it.[62]He contacted ACAS for the purposes of Early Conciliation on 24th March 2024 but did not submit a claim form until 21 April 2024.[63]In my judgment if Mr Orioni became aware of the ability to make a claim in January 2024 he could and should have contacted ACAS before 24th of March 2024 . Having left it so late to contact ACAS, it was not reasonable to then leave presenting a claim until 21 April 2024. It should have been presented more quickly and therefore was not presented in a reasonable time.[64]Therefore although this claimant is covered by the protective award made by Mr Smith[65]Mr Smith said, in his witness statement, that he took professional advice before putting his claim forward for loss of notice and holiday. He was told that was all he could claim for. He was not able to tell me who he took professional advice from. His witness statement gives no evidence as to when he knew about the possibility of making a claim for a protective award, although he states that he did "eventually hear from some of the union members that the union was making a protective award claim…". He says, in his witness statement, that he was told that there was no way for him to claim unless he was a member of the union, but he also told me that it was other drivers who said that to him. He said that he sent in his claim form as soon his he knew he was able to, thanks to the information given to him by some fellow colleagues. He did not present his claim form until 30 April 2024.[66]Without clear evidence as to when Mr Smith became aware of the possibility of making the claim, I am not able to conclude that he presented his claim within such period as was reasonable and I do not find that it was so presented.[67]Therefore although this claimant is covered by the protective award made by Mr Rullo[68]Mr Rullo's statement says it he became aware that a claim had been made by other drivers in December 2023, but he had not been aware that he could make a claim for a protective award. He says talking with his (non-union) colleagues they decided to create a group and try to claim for the protective award themselves. He told me in evidence that was around the beginning of 2024.[69]Mr Rullo presented his claim on 3 May 2024. There is no real explanation of what Mr Rullo was doing between the beginning of 2024 and 3 May 2024 and I am unable to conclude that the claim form was presented within such time as was reasonable.[70]Therefore although this claimant is covered by the protective award made by Mr Donald[71]Mr Donald's witness statement explains that he did not realise that he could benefit from a protective award and that his perception was that it was only if someone was a paid-up member of the union that they could claim this specific type of benefit. He says that compensation paid to his colleagues and the union was around £4800 and that, shortly after that, another smaller group of employees got together and successfully claimed. After speaking with his colleagues over a period of time they tried to find several ways of claiming including approaching local solicitors for basic advice. I asked him about approaching local solicitors and he stated that he had phoned around local solicitors to see what they said but that was over a year ago. He could not be more precise and stated that it was all very vague.[72]He presented his claim on 8 May 2024.[73]Again, not least because of the vagueness of Mr Donald's evidence, I am not able to find that his claim form was presented within a reasonable period after the judgment of November 2023. Some 5 months had passed between the date when the judgment of Judge Gray sent to the parties and the presentation of this claim.[74]Therefore although this claimant is covered by the protective award made by Mr Da Cruz Pepe de Brito[75]Mr Da Cruz Pepe de Brito states in his statement that in December 2023 he became aware that a claim “was being made” for a protective award but not that he could make a claim for a protective award. He found out from the insolvency service in January 2024 that his name was not on the list and was told that the tribunal or solicitor that dealt with the case initially would be able to add his name to the list.[76]He describes that at the beginning of February he tried to contact ACAS and get solicitors to get the process moving and also refers to anxiety but does not suggest that his anxiety presented any medical reason why he could not present the claim sooner than he did.[77]He presented his claim on 24 June 2024.[78]There is no explanation as to the delay between February and June 2024 apart from the reference to anxiety and I do not find that Mr Da Cruz Pepe de Brito's claim form was presented within such period as was reasonable.[79]Therefore although this claimant is covered by the protective award made by Ms Rotella & Mr Sciroli[80]Ms Rotella states that she and her husband (Mr Sciroli) only found out about the protective award in February 2022 following their own efforts and a conversation with ACAS.[81]Ms Rotella's witness statement refers to giving birth in August 2022 and I accept that it must have been particularly distressing to be made redundant within a very short period of time thereafter. She describes the emotional and psychological impact and describes herself crying almost every night during that period; however she does not define the period she is referring to. If Ms Rotella was asserting that she could not present a claim form in February or March 2024 because of the effects of giving birth and being made redundant in August 2022, I would expect her to be clear about that and adduce appropriate medical evidence. I do not find that is a valid explanation as to why the claim form was not presented sooner than it was.[82]Her witness statement, although making a plea to be treated equitably with union members, gives no other explanation as to why no claim was presented between February 2024 when she contacted ACAS and 10 July 2024 when she presented her claim form. I am unable to find that the claim form was presented within a reasonable period given the unexplained delay between February 2024 and July 2024.[83]Therefore although this claimant is covered by the protective award made by[84]Mr Sciroli gives evidence which is consistent with his wife's evidence, and, additionally, states that although he was fortunate to secure a new job, the weeks of uncertainty were among the most challenging of his life. Construing his witness statement as a whole, I find that the distress caused by the redundancy and the effect of the birth of his child lasted for weeks rather than months.[85]Mr Sciroli's claim form was presented on 10 July 2024. For the same reasons I have given in respect of Ms Rotella, I do not find this claim was presented within a reasonable period of time.[86]Therefore although this claimant is covered by the protective award made by Mr Cousins[87]Mr Cousins was employed as a Coaching Manager which, he told me and I accept, is a managerial role. He told me that as far as he was concerned no managers were members of Unite the Union and Unite did not carry out collective bargaining on behalf of the managers. I find that to be the case.[88]According to his witness statement, Mr Cousin's primary case is that he was included within the original judgment of EJ Gray. He argues that was because he was within the 57 employees referred to in paragraph 2 of the judgment. When asked for further information, Mr Cousins was not able to give a clear explanation as to why he believed that he was within the 57 employees and referred to a group of employees who were subject to a transfer of undertaking. However, if there was a transfer of an undertaking, there would not have been a proposal to dismiss those employees who were to be transferred.[89]Mr Cousins was employed as a manager and I find that he was not within the bargaining unit for which Unite the Union was recognised. I find that he was not within that part of the protective award made by Judge Gray which relates to the claim by the union. Thus, his claim must proceed under section 189.[90]In those circumstances the question for me is whether it was reasonably practicable for him to present his claim within 3 months of the dismissals on 5 July 2022. He presented his claim on 19 September 2024.[91]Mr Cousins’ witness statement asserts that he took advice at the time of his dismissal, but solicitors were not willing to take the case on a no win no fee basis.[92]His witness statement goes on to say that he was low with his mental health in early 2023 and starting a new business. He did not have the mental capacity to deal with the claim or the trauma he had left behind whilst trying to rebuild his life. He says it was in early 2024 when he heard of the November 2023 judgment and that he contacted the Redundancy Payments Service in May 2024 was told that without an employment tribunal judgment they could not process the claim.[93]Mr Cousins did not present the claim form until 19 September 2024.[94]Without clear medical evidence as to the effects of Mr Cousins’ mental health condition, I am unable to find that it was not reasonably practicable to present the claim by 4 November 2022. However, even if it would not have been reasonably practicable to do so, given that Mr Cousins was able to contact the Redundancy Payments Service in May 2024, it cannot be said that the claim form was presented within a reasonable period of time after November 2022. The delay is too long and insufficiently explained.[95]This claim fails. Mr Thornton[96]Mr Thornton, who was employed as a Assistant Coaching Manager gives evidence which is strikingly similar to that of Mr Cousins. He agrees with Mr Cousins that his role was a managerial one and that Unite the Union did not bargain on behalf of the managers. He, like Mr Cousins, contacted solicitors who would not accept his claim on a no win no fee basis in around October 2022. He also explains that the process caused him mental health issues and that his focus was on setting up his own business. He refers to being out an alltime low with his mental health in early 2023 and that starting a new business pushed him to his limits. He says that he did not have the mental capacity to deal with matters or the trauma left behind whilst trying to rebuild his life.[97]He states that in May 2024, Mr Cousins asked the Redundancy Payments Services about payment and was informed of the need for an ET judgment. He gives no real explanation as to the delay between then and presenting his claim on 19 September 2024.[98]Again, without cogent medical evidence I am not able to find that it was not reasonably practicable for him to present his claim by 4 November 2022 and the claim was not presented within a reasonable period thereafter having regard to the length of the delay and the lack of explanation for it.[99]This claim fails. Mr Turnbull[100]Mr Turnbull's evidence is that he was made aware of how to claim for holiday and redundancy pay at the time of the redundancy but there was no mention of a protective award. He also says that in December 2023 he was informed that a claim was being made for a protective award by colleagues represented by the union. He contacted the Citizens Advice Bureau in late January/early February and other solicitors but was told that it was too late to make a claim. He therefore did nothing.[101]He then discovered that Mr Dalladas had been given a date for a tribunal hearing and so made a claim. That is consistent with him notifying ACAS of his claim on 23 June 2024 and presenting his claim on 30 June 2024.[102]In respect of Mr Turnbull's position, I must consider whether the claim form was presented within a reasonable period after 13 November 2023 (bearing in mind that the judgment was only sent to the parties on 5 December 2023). I see no reason to doubt Mr Turnbull's evidence that in late January/early February he was told by the Citizens Advice Bureau and by solicitors that it was too late to make a claim. It was reasonable for him to rely upon that advice. Having regard to the lack of delay between notifying ACAS of the claim for the purposes of early conciliation and presenting his claim form, I also find that Mr Turnbull would have acted promptly if he had been given the correct information.[103]Having regard to all of those matters and because of the specific findings which I have made that the claimant was misled about whether he could bring a claim by professional legal advisers in late January 2023/early February 2023, I find that the claim was presented within a reasonable period after 13 November 2023.[104]His claim under section 192, therefore, succeeds and he is entitled to be paid a sum equivalent to 90 days’ pay. He told me that he earned £560 per week and, therefore, I calculate he is entitled to a judgment of £10,080 calculated by dividing the weekly figure by 5 and multiplying it by 90 Mr Lewendon[105]Mr Lewendon's evidence is that he did not become aware of the possibility of making a claim until ACAS disclosed the possibility of doing so. He does not say, in his witness statement, when that was and he told me that he only became aware of the claim when chatting with Mr Dalladas and Ms Jones.[106]Mr Dalladas presented his claim on 21 March 2024 and Ms Jones presented hers on 9 April 2024.[107]Mr Lewendon presented his claim on on 24 June 2024, some 21/2 months after Ms Jones. He does not satisfactorily explain that delay beyond stating that there was no guidance from “administrators” or managers to help him. However, in my judgment it is not a good explanation for delay for a person, who is not under some kind of disability, to say that people would not help them. The tribunal is designed to be accessible to litigants in person. Having said that, as with all the claimants, I take account of the fact that this is a difficult area of law and the claimant was not employed in the type of professional role where he might be expected to be dealing with similar concepts regularly. However, even taking account of those matters, given the delay in presenting the claim, I do not consider that the claim was presented within a reasonable period after the Protective Award judgment.[108]Therefore although this claimant is covered by the protective award made by EJ Gray, the claim under section 192 fails because I do not find that this claim was presented within a reasonable period of time after the Protective Award judgment.. Mr Wierbowski[109]Mr Wierbowski was on holiday at the date of the redundancy. He describes returning to the UK and focusing on finding another job but believing that he was only able to claim for loss of holiday and loss of notice. His witness statement is not altogether easy to follow, he talks about finding employment with Morebus and after a few months trying to contact ACAS to get a certificate but not realising that they only had a three-month timeframe. He does not say when he contacted ACAS or what they told him. He presented his claim form on 29 September 2024 and on the basis of the evidence which he has presented I do not find that his claim was presented with a reasonable period.[110]Therefore although this claimant is covered by the protective award made by EJ Gray, the claim under section 192 fails because I do not find that this claim was presented within a reasonable period of time after the Protective Award judgment.. Christopher Pickard and Zoe Pickard[111]These claimants submitted a joint statement and I deal with them together. The schedule in the appendix to the Case Management Order says that both presented claims on 10 October 2024. The tribunal files shows that Mr Pickard presented his claim in December 2024, but for the purposes of this judgment I will rely on the earlier date. Their witness statement states “On learning the outcome of the court judgment from many ex Bournemouth transport employees another group which we then joined with sought the help of ACAS”.[112]They give no details as to why they did not present their claim before October 2024 when most of the other claimants were able to present their claims significantly earlier.[113]On the evidence presented I do not find that their claim was presented within time which was reasonable.[114]Therefore although these claimants are covered by the protective award made by EJ Gray, the claims under section 192 fail because I do not find that the claims were presented within a reasonable period of time after the Protective Award judgment. Mr Gomm[115]Mr Gomm describes in his witness statement that he when asked about joining the claim for a protective award he was told that was not possible because he was not a paying member of Unite. It is not suggested that he did anything else about finding out whether he may be able to bring such a claim. He goes on to say that in late November 2024 he read a Facebook post of Mrs Jones asking if anybody was interested to join a non-union group for a protective award. He spoke to Mrs Jones and she advised him to contact ACAS and he then contacted ACAS on 1 December 2024 and presented a claim on 5 December 2024. In his evidence Mr Gomm described living on his own and not having any support.[116]Mr Gomm struck me as being an honest and credible witness but his claim was presented over a year after the protective award. I regret that there is insufficient evidence in his witness statement to enable me to conclude that his claim form was presented within a reasonable period.[117]Therefore although this claimant is covered by the protective award made by EJ Gray, the claim under section 192 fails because I do not find that this claim was presented within a reasonable period of time after the Protective Award judgment..