Mr D Hyde and Mr G Edwards v Lloyd Fraser Primary Logistics Ltd (In Administration) and Secretary of State for Business and Trade: 1406128/2023 and 1406303/2023
JUDGMENT
The judgment of the Employment Judge sitting alone is that:[1]The complaint that the first respondent failed to comply with a requirement of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 is well founded.[2]The tribunal makes a protective award in respect of the two claimants who were employees of the respondent at its premises at Folly Road, Devizes, Wiltshire SN10 3DP who were dismissed as redundant on 22 September 2023 and orders the first respondent to pay the two claimants remuneration for the protected period of 90 days beginning on 22 September 2023.REASONS
[1]This is a claim for a protective award brought by the two named claimants Mr Darren Hyde (Tribunal reference 1406128/2023) and Mr Geoffrey Edwards (Tribunal reference 1406303/2023).[2]The claimants both gave evidence today. 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 Lloyd Fraser Primary Logistics Ltd entered administration on 22 September 2023. On that date the joint administrators addressed all employees of the first respondent and informed them that the majority of employees were dismissed by reason of redundancy with immediate effect. There were approximately 30 employees who all worked at or from the respondent's premises at Folly Road, Devizes, Wiltshire, SN10 3DP, and more than 20 employees, including the two claimants, were dismissed at that time.[4]There was no independent trade union which was recognised by the first respondent for the purposes of collective bargaining, consultation and negotiation.[5]The first respondent had not recognised, and did not elect or appoint, any workplace representatives for the purposes of collective bargaining, consultation and negotiation.[6]The respondent failed to undertake any or any adequate consultation with the claimants prior to their dismissals.[7]Having found the above facts, I now apply the law.[8]The relevant law is in the Trade Union and Labour Relations (Consultation) Act 1992 (“TULRCA”).[9]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.[10]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).”[11]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.”[12]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.”[13]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.”[14]In this case the claimants’ complaint that the first respondent failed to comply with a requirement of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 is well founded, and I make the protective award as set out above.