Mr A Hobbs and others v Kern Ltd (In Creditors Voluntary Liquidation) and Secretary of State for Business and Trade: 1405411/2023 and others
REASONS
[1]This is a claim for protective awards.[2]The First Claimant gave evidence and I read the written statement of the Third Claimant. A bundle of documents was produced, pages to which have been cited below in square brackets.[3]The following factual findings were made;a. The Claimants were all employed by the First Respondent at its premises in Fareham, Hampshire. No other workplace and/or establishment was operated by the Respondent;b. Following a group meeting that was held on 28 July 2023, they received letters indicating that the First Respondent was insolvent and that their employments would end on 31 July [52-3];c. They were then all dismissed on 31 July and the First Respondent entered Creditors Voluntary Liquidation on 24 August;d. The First Respondent failed to undertake any or any adequate consultation with the Claimants prior to their dismissals beyond the meeting of 28 July;e. No workplace representatives had been elected for consultation purposes or otherwise;f. No trade union was recognised by the First Respondent;g. The entire workforce was made redundant on 31 July. There were then 21 employees;h. The Claimants commenced ACAS early conciliation on 4 October and certificates were issued on 6 October 2023 [2-3];i. Proceedings were commenced on 6 October 2023 [4-20];j. The Second Respondent filed a Response on 16 November 2023; it could not comment upon the extent of any consultation, but encouraged the tribunal to consider the Claimants’ ability to bring personal claims and the other elements of the statutory test;k. The First Respondent does not contest the claim (see Quantuma’s letter of 1 December 2023);l. The Insolvency Service has already made payments in respect of outstanding holiday pay, notice pay and redundancy pay [57-66];m. None of the Claimants received state benefits in the period of eight weeks after their dismissals.[4]The relevant law is in the Trade Union and Labour Relations (Consultation) Act 1992 (“TULRCA”). 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”. Section 188 (1A) provides: "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.”[5]Section 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.”[6]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.”[7]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.”[8]On the basis of the facts set out above, the Claimants proved that the requirements of s. 188 were met. No special circumstances were demonstrated under s. 188 (7). They were entitled to protective awards.