Mr M Nowakowski and Others v Advanced Biofuel Solutions Ltd (In Creditors Voluntary Liquidation) and The Secretary of State for Business Energy and Industrial Strategy: 1401724/2025 and Others Mr M Nowakowski and Others v Advanced Biofuel Solutions Ltd (In Creditors Voluntary Liquidation) and The Secretary of State for Business Energy and Industrial Strategy: 1401724/2025 and Others

EMPLOYMENT TRIBUNALS

Case No 1401724/2025

Between

Mr M Nowakowski & 27 Ors Respondent 1: Advanced Biofuel Solutions Limited (In Creditors Voluntary Liquidation) Respondent 2: The Secretary of State for Business Energy and Industrial StrategyClaimant

Advanced Biofuel Solutions Ltd (In Creditors Voluntary Liquidation) and The Secretary of State for Business Energy and Industrial StrategyRespondent

Before

Employment Judge Woodhead

Mr Harthan (instructed by Counsel) for claimant

Date 13 February 2026

JUDGMENT

[1]The First Respondent has failed to comply with a requirement of section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992. The claim for a protective award succeeds in respect of Claimants 1-17 and 19-26 as listed in the Schedule to this judgment (“the Protected Claimants”).

[2]The claims for a protective award are not well founded in respect of Ms J Greener (Claimant 27) and Mr O Chesser (Claimant 18) and are dismissed.

[3]The Tribunal makes a protective award in respect of the Protected Claimants who worked at the First Respondent’s establishment at Unit a4, Marston Gate, Stirling Road, South Marston Industrial Estate, Swindon, SN3 4DE and who were dismissed as redundant on or after 16 March 2025 and declares that the employer shall pay remuneration for a protected period of 90 days which begins on 16 March 2025. The Recoupment Regulations apply. 1 of 16

REASONS

[4]For this hearing I was provided with:4.1 A bundle of 50 pages

4.2 Witness statements for all of the Claimants except Claimant 27.

[5]Mr Moisejevs gave evidence at the hearing and, having heard submissions from Counsel for the Claimants, I deliberated and gave an oral judgment and reasons. Notwithstanding that I gave reasons at the hearing, I nonetheless set out those reasons in writing below. The law Duty of employer to consult

The law

[6]Chapter II of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) concerns the duty of an employer to consult employee representatives went is proposing to dismiss more than 20 employees at one establishment. S. 188 TULRCA (Duty of employer to consult . . . representatives) provides:(1) 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. (1A) 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 45 days, and (b) otherwise, at least 30 days, before the first of the dismissals takes effect. (1B) For the purposes of this section the appropriate representatives of any affected employees are— (a) if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union, or (b) in any other case, whichever of the following employee representatives the employer chooses:— 2 of 16 (i) employee representatives appointed or elected by the affected employees otherwise than for the purposes of this section, who (having regard to the purposes for and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf; (ii) employee representatives elected by the affected employees, for the purposes of this section, in an election satisfying the requirements of section 188A(1).

(2) 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.

(3) In determining how many employees an employer is proposing to dismiss as redundant no account shall be taken of employees in respect of whose proposed dismissals consultation has already begun.

(4) 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 the 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 an obligation imposed by or by virtue of any enactment) to employees who may be dismissed 3 of 16 (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 those agency workers are carrying out.

(5) 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. (5A) The employer shall allow the appropriate representatives access to the affected employees and shall afford to those representatives such accommodation and other facilities as may be appropriate.

(6) [..]

(7) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsection (1A), (2) or (4), the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances. Where the decision leading to the proposed dismissals is that of a person controlling the employer (directly or indirectly), a failure on the part of that person to provide information to the employer shall not constitute special circumstances rendering it not reasonably practicable for the employer to comply with such a requirement. (7A) Where— (a) the employer has invited any of the affected employees to elect employee representatives, and (b) the invitation was issued long enough before the time when the consultation is required by subsection (1A)(a) or (b) to begin to allow them to elect representatives by that time, the employer shall be treated as complying with the requirements of this section in relation to those employees if he complies with those requirements as soon as is reasonably practicable after the election of the representatives. (7B) If, after the employer has invited affected employees to elect representatives, the affected employees fail to do so within a reasonable time, he shall give to each affected employee the information set out in subsection (4). 4 of 16

(8) This section does not confer any rights on a trade union, a representative or an employee except as provided by sections 189 to 192 below.

[7]S. 188A concerns the election of employee representatives and provides:(1) The requirements for the election of employee representatives under section 188(1B)(b)(ii) are that— (a) the employer shall make such arrangements as are reasonably practical to ensure that the election is fair; (b) the employer shall determine the number of representatives to be elected so that there are sufficient representatives to represent the interests of all the affected employees having regard to the number and classes of those employees; (c) the employer shall determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees; (d) before the election the employer shall determine the term of office as employee representatives so that it is of sufficient length to enable information to be given and consultations under section 188 to be completed; (e) the candidates for election as employee representatives are affected employees on the date of the election; (f) no affected employee is unreasonably excluded from standing for election; (g) all affected employees on the date of the election are entitled to vote for employee representatives; (h) the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, may vote for as many candidates as there are representatives to be elected to represent their particular class of employee; (i) the election is conducted so as to secure that— (i) so far as is reasonably practicable, those voting do so in secret, and (ii) the votes given at the election are accurately counted. 5 of 16

(2) Where, after an election of employee representatives satisfying the requirements of subsection (1) has been held, one of those elected ceases to act as an employee representative and any of those employees are no longer represented, they shall elect another representative by an election satisfying the requirements of subsection (1)(a), (e), (f) and (i).

[8]S. 189 (Complaint … and protective award) provides:(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. (1A) If on a complaint under subsection (1) a question arises as to whether or not any employee representative was an appropriate representative for the purposes of section 188, it shall be for the employer to show that the employee representative had the authority to represent the affected employees. (1B) On a complaint under subsection (1)(a) it shall be for the employer to show that the requirements in section 188A have been satisfied.

(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, 6 of 16 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 the 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— (a) whether there were special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of section 188, or (b) whether he took all such steps towards compliance with that requirement as were reasonably practicable in those circumstances, it is for the employer to show that there were and that he did. Establishment 7 of 16

[9]In the Rockfon A/S v Specialarbejderforbundet i Danmark

1996 ICR 673

, ECJ, the ECJ considered the meaning of ‘establishment’ in the context of Article 1(1)(a)(i). The Court held that ‘establishment’ is a term of Community law and cannot be defined by reference to the laws of the Member States. Rather, in every jurisdiction it must be understood as meaning, depending on the circumstances, the unit to which the redundant workers are assigned to carry out their duties. It is not essential for the unit in question to have a management which can independently effect collective redundancies.

[10]In Athinaiki Chartopoiia AE v Panagiotidis and ors

2007 IRLR 284

, ECJ, where the European Court confirmed, among other things, that: “the term ‘establishment’ is to be defined broadly so as to limit the instances of collective redundancy to which the Directive does not apply an establishment, in the context of an undertaking, may consist of a distinct entity, having a certain degree of permanence and stability, which is assigned to perform one or more given tasks, and which has a workforce, technical means and a certain organisational structure allowing for the accomplishment of those tasks the entity in question need not have any legal, economic, financial, administrative or technological autonomy in order to be regarded as an establishment it is not essential for the unit in question to be endowed with a management that can independently effect collective redundancies in order for it to be regarded as an establishment. Nor must there be a geographical separation from the other units and facilities of the undertaking”

[11]Both Athinaike and Rockfon were subsequently followed in two cases that specifically concerned the implementation of Article 1(1)(a)(ii) of the Directive into UK national law — namely USDAW and anor v Ethel Austin Ltd and ors

2015 ICR 675

, ECJ (commonly referred to as ‘the Woolworths case’), and Lyttle and ors v Bluebird UK Bidco 2 Ltd

2015 IRLR 577

, ECJ. In these cases, the ECJ confirmed that the ‘establishment’ is the unit to which the redundant employees are assigned to carry out their duties. It specifically noted that, in some cases where an undertaking does not have several distinct units, the establishment and undertaking will be the same thing, but in other cases the establishment will be part of a larger undertaking. It also reiterated a point made in the earlier cases that the word ‘establishment’ must be given a uniform meaning across Member States to ensure equivalency of application throughout the EU and thus secure, in economic terms, uniformity of redundancy costs across the Union. However, the Court also held that, in circumstances where the second option in Article 1(1)(a) has been chosen, it is not necessary to aggregate the dismissals across all of an employer’s establishments.

[12]In USDAW and anor v Ethel Austin Ltd and ors the ECJ held at paragraphs 47 to 54 (emphasis added):47. In [31] of the judgment in Rockfon [1995] E.C.R. I-4291 , the Court observed, referring to [15] of the judgment in Botzen v Rotterdamsche 8 of 16 Droogdok Maatschappij BV (186/83) [1985] E.C.R. 519 ; [1986] 2 C.M.L.R. 50, that an employment relationship is essentially characterised by the link existing between the worker *985 and the part of the undertaking or business to which he is assigned to carry out his duties. The Court therefore decided, at [32] of the judgment in Rockfon [1995] E.C.R. I-4291, that the term “establishment” in art.1(1)(a) of Directive 98/59 must be interpreted as designating, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties. It is not essential in order for there to be an “establishment” that the unit in question is endowed with a management that can independently effect collective redundancies.

48. It is apparent from [5] of the judgment in Rockfon [1995] E.C.R. I-4291 that the Kingdom of Denmark—the Member State of the court which made the request for a preliminary ruling in that case—had opted for the approach set out in art.1(1)(a)(i) of the directive.

49. In the judgment in Athinaïki Chartopoiïa [2007] E.C.R. I-1499 , the Court further clarified the term “establishment”, inter alia by holding, at [27] of that judgment, that, for the purposes of the application of Directive 98/59, an “establishment”, in the context of an undertaking, may consist of a distinct entity, having a certain degree of permanence and stability, which is assigned to perform one or more given tasks and which has a workforce, technical means and a certain organisational structure allowing for the accomplishment of those tasks.

50. By the use of the words “distinct entity” and “in the context of an undertaking”, the Court clarified that the terms “undertaking” and “establishment” are different and that an establishment normally constitutes a part of an undertaking. That does not, however, preclude the establishment being the same as the undertaking where the undertaking does not have several distinct units.

51. In [28] of the judgment in Athinaïki Chartopoiïa [2007] E.C.R. I-1499 , the Court held that since Directive 98/59 concerns the socio-economic effects that collective redundancies may have in a given local context and social environment, the entity in question need not have any legal autonomy, nor need it have economic, financial, administrative or technological autonomy, in order to be regarded as an “establishment”.

52. Consequently, according to the case law of the Court, where an “undertaking” comprises several entities meeting the criteria set out at [47], [49] and [51] above, it is the entity to which the workers made redundant are assigned to carry out their duties that constitutes the “establishment” for the purposes of art.1(1)(a) of Directive 98/59 .

53. That case law is applicable to the present case. 9 of 16

54. The meaning of the terms “establishment” or “establishments” in art.1(1)(a)(i) of Directive 98/59 is the same as that of the terms “establishment” or “establishments” in art.1(1)(a)(ii) of that directive.

[13]It further held that the trigger provision in Article 1(1)(a)(ii) of the Directive does not mandate all ‘establishments’ to be aggregated for the purpose of the 20- employee threshold. In other words, adopting the words of the ECJ: ‘the definition [of “establishment”] in Article 1(1)(a)(i) and (a)(ii) of [the Directive] requires that account be taken of the dismissals effected in each establishment considered separately…. [A]rticle 1(1)(a)(ii) must be interpreted as not precluding national legislation that lays down an obligation to inform and consult workers in the event of the dismissal, within a period of 90 days, of at least 20 workers from a particular establishment of an undertaking, and not where the aggregate number of dismissals across all of the establishments or across some of the establishments of an undertaking over the same period reaches or exceeds the threshold of 20 workers.’

[14]In Lyttle and ors v Bluebird UK Bidco 2 Ltd

2015 IRLR 577

, ECJ, again followed the Advocate General’s opinion and held that the ‘establishment’ is the local unit to which the redundant employees are assigned to carry out their duties. The ECJ ruled that the term ‘establishment’ in Article 1(1)(a)(ii) of the Directive must be interpreted in the same way as the term in Article 1(1)(a)(i). This definition requires that account be taken of the dismissals effected in each establishment separately. In the ECJ’s view, the Directive does not require all ‘establishments’ to be aggregated for the purpose of the 20-employee threshold and so Article 216 of the Employment Rights (Northern Ireland) Order 1996, which mirrors S.188(1) TULR(C)A, is not incompatible with the Directive in this regard. On 24 September 2015 the case returned to the industrial tribunal in Northern Ireland, which determined that each individual store was to be considered a separate ‘establishment’ and that, where each establishment consisted of fewer than 20 redundant employees, the collective consultation duty did not apply — Lyttle and anor v Bluebird UK Bidco 2 Ltd IT Case No.555/12. Proposal to dismiss 20 or more employees as redundant

[15]In Micro Focus Limited v Mildenhall

[2025] EAT 188

, the proposal is what is being contemplated for the future, which is not necessarily answered by what happened [55]. It is a prospective question based on the employers plans [56]. The claim can be brought by any of the affected employees, this includes those whose dismissal precede or follow the period in which other dismissals are effected and those who were not dismissed [57]. The focus of s. 188 is what the employer was proposing to occur within 90 days. The EAT said at paragraph 58: “It cannot be simply deduced from the fact that 20 or more dismissals occur within any period of 90 days that the employer, at some stage, was 10 of 16 or must have been proposing all those dismissals. For example, a second tranche of dismissals may be proposed more than two months after a first tranche, and the second tranche may result from events which were entirely unforeseeable when the employer proposed the first tranche.”

[16]It was further explained at paragraphs 60 to 62 (emphasis added): “60. In summary: the consistent and clear focus of these provisions is on what the employer is “proposing” for the future. A tribunal cannot simply deduce the answer to that statutory question from the total number of employees dismissed, or proposed to be dismissed, within any period of 90 days by looking backwards and forwards, regardless of the circumstances. Rather, in applying s.188 a tribunal should focus on the statutory question of whether an employer was “proposing” to dismiss the relevant numbers at the material time. It should not be distracted by concepts from Marclean, directed to answering a question about the meaning of a very different concept in Article 1(1)(a) Directive and its impact on Spanish law with no clear parallels in TULRCA.61. There are two further points to make, however. First, what in fact happens subsequently will often be highly relevant evidentially to what the employer was “proposing” in the past. For example, a tribunal should scrutinise carefully the evidence where an employer in fact dismisses 20 or more employees within a period of 90 days but denies this was something it was at any stage “proposing” in the past. Dismissals do not happen by accident. Tribunals should be astute to see through artificial divisions of dismissals into batches, deliberate delaying or staggering of dismissals to take advantage of s.188(3) or other means of circumventing the important duties in s.188. If, as the employee alleged in Marclean (see AG at §8), the employer was engaged in “covert” collective redundancies of which her dismissal formed part, tribunals have the tools to detect these and TULRCA provides the means of giving claimants a proper remedy. Approaching the evidence robustly and realistically, and bearing in mind the protective purpose of the legislation, a tribunal may legitimately infer an employer was at some stage “proposing” sufficient collective dismissals to trigger the duties from the fact of their subsequent occurrence.

62. Second, the present participle of “contemplating” in the Directive or “proposing” in s.188(1) of TULRCA is not so inelastic that it is tied to a single moment in time. The subsection does not refer to a single decision, nor to “a proposal”. An employer who proposes, say, six dismissals on Monday, seven on Tuesday and eight on Wednesday may readily be said to be “proposing” 21 redundancies that week. Tribunals should not give “proposing” a narrow meaning in the temporal sense, in accordance with the purpose of these provisions to protect workers. But in every case it will be a question of fact for the ET to decide whether the 11 of 16 employer was, at some stage, “proposing” the threshold number of dismissals.” Protective award

[17]A protective award is punitive not compensatory. Guidance as to the factors to be taken into consideration were given in Susie Radin Ltd v GMB and ors

2004 ICR 893

, CA, namely:17.1 the purpose of the award is to provide a sanction, not compensation

17.2 the tribunal has a wide discretion to do what it considers just and equitable, but the focus must be on the seriousness of the employer’s default

17.3 the default may vary in seriousness from the technical to a complete failure, both to provide the required information and to consult

17.4 the deliberateness of the failure may be relevant, as may the availability to the employer of legal advice about its obligations under S.188, and

17.5 how the tribunal assesses the length of the protected period is a matter for the tribunal, but a proper approach where there has been no consultation is to start with the maximum period of 90 days and reduce it only if there are mitigating circumstances justifying a reduction to an extent to which the tribunal considers appropriate. Findings of fact and analysis and conclusions

[18]The First Respondent, which is in Creditors Voluntary Liquidation, has not filed a response to the claim. The second respondent has no direct knowledge of the circumstances of the Claimants’ dismissals. Was there a proposal to dismiss as redundant 20 or more employees within a period of 90 days or less?

[19]It is clear that there was a proposal to dismiss as redundant 20 or more employees within the period of 90 days or less from the week commencing 12 March 2025. I accept Mr Moisejev’s (Claimant 15) evidence to the Tribunal. It is clear that a limited number of employees were told about the proposal to dismiss them as redundant on 12 March 2025 but that 21 employees were told that they would be dismissed as redundant on 16 March 2025 and were in fact dismissed with effect from that date (Claimants 1 – 8, 10, 13-16, 19-26) (the “16 March Claimants”).

[20]Claimant 9 was told of his redundancy on 12 March 2025 and dismissed with effect from 16 March 2025.

[21]Claimant 11 was told of his redundancy on 12 March 2025 and his employment came to an end on 17 April 2025 (as he was one of a small number of 12 of 16 employees engaged in the decommissioning of the Respondent’s Swindon site and/or the administration process). Claimant 17’s employment was also terminated on 17 April 2025.

[22]Claimant 12 was told of his redundancy on 5 April 2025 and his employment ended on that date. Was that proposal in relation to employees at one establishment

[23]It is clear, based on the evidence of Mr Moisejevs and the signed witness statements (all of which had a statement of truth), that all of the Protected Claimants were employed at one establishment (being Unit a4, Marston Gate, Stirling Road, South Marston Industrial Estate, Swindon, SN34 DE12). Was there any consultation with appropriate representatives

[24]I accept Mr Moisejevs’ evidence that:24.1 there was no recognised Trade Union nor any standing body of elected representatives at the First Respondent with authority to receive information and to be consulted about proposed dismissals on behalf of the Protected Claimants;

24.2 the First Respondent gave no opportunity to the Protected Claimants to elect employee representatives; and

24.3 there was no consultation with appropriate representatives. Was there a failure to consult

[25]As such I accept Mr Moisejevs’ evidence that there was a complete failure to consult as required under the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). Should a protective award be made and if so for what period?

[26]The Claim Form was issue on 15 June 2025. The last of the dismissals took effect on 17 April 2025, so all the Protected Claimants’ claims have been presented within the time limit contained in section 189(5)(b) of TULRCA.

[27]There appears to be no reason to depart from the principle that protective awards are punitive and should be for the maximum period unless there are circumstances making it just not to do so.

[28]The Tribunal declares that the complaint that the First Respondent failed to comply with a requirement of section of 188 of TULRCA is well founded and makes a protective award in respect of the Protected Claimants (who were engaged by the First Respondent at its premises at Unit a4, Marston Gate, Stirling Road, South Marston Industrial Estate, Swindon, SN3 4DE12 and who were dismissed as redundant on or after 16 March 2025). The Tribunal orders the First Respondent to pay to those employees remuneration for the protected period of 90 days beginning on 16 March 2025. 13 of 16 Claimant 27

[29]Whilst Claimant 27 did not withdraw her claim, she provided no witness statement and therefore I do not consider that I have an evidential basis on which to make a protective award in respect of her. Accordingly, Claimant 27’s claim for a protective award is not well founded and is dismissed. Claimant 18

[30]Claimant 18’s witness statement said “3. During my employment my place of work was Unit a4, Marston Gate, Stirling Road, South Marston Industrial Estate, Swindon, SN3 4DE. […] I worked at this address three days a week.”. He did not attend the hearing to give evidence. Whilst Mr Moisejevs was able to attest to the Successful Claimant’s being based at this Unit A4, Swindon site, he was not able to confirm the same in respect of Claimant 18.

[31]The First Respondent had a London Office and, given that Claimant 18 has a London address (NW11 postcode) that is a considerable distance from Swindon, I do not consider the balance of probabilities, and taking into account the case law referred to above, that Claimant 18 worked at the Unit A4, Swindon site establishment.

[32]There is no evidence before me that there was a proposal to dismiss 20 or more employees within a period of 90 days at the London Office.

[33]Accordingly, Claimant 18’s claim for a protective award is not well founded and is dismissed.