Mrs J Dowling and Others v Fitzgerald Lighting Cornwall Ltd (In Voluntary Liquidation) Secretary of State for Business, Energy and Industrial Strategy 1403245/2019
JUDGMENT
The judgment of the Employment Judge sitting alone is that:[1]The complaint that the 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 respect of all 41 claimants on the attached schedule of claimants who were employees of the respondent at its premises at Bodmin, Cornwall who were dismissed as redundant on or after 30 May 2019 and orders the respondent to pay those employees remuneration for the protected period of 90 days beginning on the date of dismissal. The tribunal declares that each such employee is entitled to an award in respect of 90 days, irrespective of the date of termination of his or her employment.REASONS
[1]This is a claim for a protective award brought by the 41 claimants named in the attached schedule of claimants.[2]I have heard today from Mrs Dowling (1403245/2019) and Mrs Whorwood (1403274/2019), and 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 company is Fitzgerald Lighting Cornwall Limited, which at the material times was a lighting manufacturing company with a factory in Bodmin in Cornwall. On 29 May 2019 the first respondent’s managers informed the workforce that the first respondent was no longer able to afford to pay its workforce and that it was highly likely that they would be made redundant on the following day.[4]There were no recognised trade unions, and no elected employee representatives.[5]On 30 May 2019 the entire workforce was called to a meeting by an insolvency practitioner who explained that the first respondent would enter liquidation imminently. All but four of the employees were told that they were dismissed on the grounds of redundancy with immediate effect. These four employees all worked in the accounts department and they remained employed for a further week and were dismissed on 7 June 2019. The first respondent then entered Voluntary Creditors’ Liquidation on 10 June 2019.[6]Four of the employees had national sales representative roles, and they did not attend the meeting on 30 May 2019. However, the liquidator telephoned them immediately afterwards, they were also informed of their dismissal by reason of redundancy with immediate effect on 30 May 2019. Three of these four employees are current claimants, namely Mr Stuchberry (1403255/2019), Mr Baldwin (1403263/2019) and Mr Davies (1403282/2019). Although they were based from their home addresses, the national sales function was maintained at the Bodmin factory and they reported to the Sales Director who was based at the Bodmin factory. They were an integral part of the business entity based in Bodmin.[7]Pursuant to an earlier order of the Tribunal, the first respondent has provided a list of employees, their job titles and their locations. This suggests that there were 46 employees in the Bodmin premises, two employees in Northern Ireland, and the four national sales representatives working from home. In fact, this list omits one of the currently named claimants Miss ML Best (140/3267/2019) but I am satisfied from the evidence of both Mrs Dowling and Mrs Whorwood today that Miss Best was one of the affected employees dismissed by reason of redundancy at Bodmin by the first respondent at the same time.[8]The respondent failed to undertake any or any adequate consultation with any of the claimants prior to their dismissals.[9]Having found the above facts I now apply the law.[10]The relevant law is in the Trade Union and Labour Relations (Consultation) Act 1992 (“TULRCA”).[11]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.[12]S 188(1B) provides that: “For the purposes of this section the appropriate representatives of any affected employees are –(a) if the employees 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:- (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).”[13]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.”[14]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.”[15]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.”[16]In this case there were no recognised trade unions and no elected employee representatives. The named individual claimants are thus entitled to seek a protective award personally. They were all dismissed in breach of the statutory collective consultation provisions. Accordingly, the Tribunal makes a protective award in favour of all 41 employees being the named claimants in the attached schedule for the period of 90 days, which commences on 30 May 2019, save for the four employees in the accounts department in which case the protective award of 90 days commences on 7 June 2019. Employment Judge N J Roper Dated 19 December 2019 Judgment sent to Parties on Schedule of Claimants Case no. Claimant 1403245/2019 Mrs JC Dowling 1403246/2019 Mrs S Dent 1403247/2019 Mrs JA Davey 1403248/2019 Mr RM Osborne 1403249/2019 Mr G Thomas 1403250/2019 Mr JD Torres 1403251/2019 Mr AR MacKellar 1403252/2019 Mr A Thomas 1403253/2019 Miss CS Jolliff 1403254/2019 Mr LH Davey 1403255/2019 Mr AP Stuchberry 1403256/2019 Mr PJ Toms 1403257/2019 Miss DE Menhenitt 1403258/2019 Mrs KL Welby 1403259/2019 Mr SA Tait 1403260/2019 Mrs AJ Hoskin 1403261/2019 Mr A Hoskin 1403262/2019 Miss C Barclay 1403263/2019 Mr JA Baldwin 1403264/2019 Ms T Venner 1403265/2019 Mr R Connell 1403266/2019 Mrs SJ Jones 1403267/2019 Miss ML Best 1403268/2019 Mrs L Rush 1403269/2019 Mr L Gower 1403270/2019 Mr P Andrew 1403271/2019 Mrs SD Luxton 1403272/2019 Mrs SC Yeo 1403273/2019 Mr J Yeo 1403274/2019 Mrs L Whorwood 1403275/2019 Miss SJ Sleeman 1403276/2019 Mr TS Tait 1403277/2019 Mrs ML Jackson 1403278/2019 Mr R Smith 1403279/2019 Mr S Hore 1403280/2019 Miss RJ Wearne 1403281/2019 Mrs J Cullip 1403282/2019 Mr RW Davies 1403283/2019 Mr CJ Menhinnitt 1403284/2019 Mrs PJ Trethewey 1403285/2019 Mr MA Jones 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 therefrom 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.