Mr S Lane and others v City Engineering Systems (Bristol) Ltd and The Secretary of State for Business, Energy & Industrial Strategy: 1601216/2018 and others

EMPLOYMENT TRIBUNALS
Case No 1601216/2018, 1601217/2018, 1601219/2018, 1601220/2018, 1601232/2018, 1601238/2018, 1601241/2018, 1601259/2018, 1601385/2018, 1601383/2018, 1601384/2018, 1601261/2018
Between
(1) Mr S Lane (2) Mr R Rumsey (3) Mr K Woodward (4) Mr G Barrett (5) Mr P Bird (6) Mr L Dobbs (7) Mr P O’Neill (8) Mr J Elmore (9) Mr R Crompton (10) Mr C Webber (11) Mr G Stokes (12) Miss S PhillipsClaimant(1) City Engineering Systems (Bristol) Limited (2) The Secretary of State for Business, Energy & Industrial StrategyRespondent
Before
Employment Judge Howden-EvansSophie George (instructed by solicitor) for claimantNot represented for respondentDate 15 October 2019

JUDGMENT

Having considered written submissions from the parties, the Employment Judge’s decision is:[1]It is necessary in the interests of justice for the Judgment dated 18th July 2019 to be reconsidered.[2]The Judgment dated 18th July 2019 has been varied as set out in the Reconsidered Judgment dated 15th October 2019. 1 Case Numbers: 1601216/2018, 1601217/2018, 1601219/2018, 1601220/2018, 1601232/2018, 1601238/2018, 1601241/2018, 1601259/2018, 1601385/2018, 1601383/2018, 1601384/2018 & 1601261/2018 EMPLOYMENT JUDGE HOWDEN-EVANS Dated: 15th October 2019 Judgment posted to the parties on ………16 October 2019……………. ……………………………………….

REASONS

[1]Following a period of ACAS EC conciliation, by ET1 claim forms presented on 28th September 2018, the claimants contended (among other matters), that contrary to Section 188 TULRCA, the respondent had failed to comply with its duty to consult and sought a protective award under Section 189 TULRCA.[2]By letter of 8th November 2018, the tribunal confirmed that as the first respondent company was in administration, proceedings could not be continued without the consent of the Administrator.[3]By ET3 forms dated 13th November 2018, the second respondent confirmed it was neither supporting nor resisting the claimants’ claims and set out matters the Employment Tribunal should have regard to in considering these claims. I am grateful to the second respondent for this written submission, which I have considered in reaching this decision.[4]By letter of 29th November 2018, Susan Clay, joint administrator confirmed the administrators had no objection to the claimants’ proceedings.[5]By ET3 forms dated 10th December 2018, the first respondent confirmed it was not contesting these claims. Evidence 5. I accept the unchallenged evidence of Stephen Lane, Robert Rumsey and Karl Woodward. Consequently, I find: 5.1. There was no union recognised by the respondent for collective bargaining purposes. 5.2. There was no attempt to arrange employee representative elections. 5.3. There was no consultation with any employee representative acting on behalf of the affected individuals at any time. 5.4. On 1st June 2018, without any prior warning, consultation or discussion, the claimants were told they were being made redundant with immediate effect Case Numbers: 1601216/2018, 1601217/2018, 1601219/2018, 1601220/2018, 1601232/2018, 1601238/2018, 1601241/2018, 1601259/2018, 1601385/2018, 1601383/2018, 1601384/2018 & 1601261/2018 as the first respondent company was going into administration. 5.5. The first respondent made 19 employees redundant on 1st June 2018; a further employee was made redundant on 4th June 2018 and further 2 employees were made redundant on 8th June 2018. 5.6. All of these 22 employees had previously worked at the first respondent’s Cardiff site. Analysis and Conclusions

Evidence

[6]It is sad when a company goes into administration and has to cease trading in a particular location. The closure of the respondent company’s Cardiff site has been a loss to those who worked there and their families and communities. No doubt it tried hard to keep the site open. However, a company cannot fail to engage in discussions and consultation with trade unions, or in their absence, employee representatives.[7]A protective award is punitive and not compensatory. Where there has been no consultation at all it is appropriate to start at the maximum period of 90 days; see the leading case of Susie Radin v GMB [2004] IRLR 400.[8]I have been mindful of the EAT’s decision in Lancaster University v UCU [2011] IRLR 4, that I should place a serious breach of the duty to consult at the top of the protective award and then look for mitigation. In this case, with no evidence from the respondent company, I have found no mitigating factors.[9]Accordingly, the appropriate period for the protective award is 90 days and each of the Claimants is awarded 90 days gross pay. Calculations Mr S Lane Mr S Lane’s protective award amounts to £6,984.90 (£77.61 gross daily wages x 90 days) Mr R Rumsey Robert Rumsey’s protective award amounts to £5,801.53 (£64.46 gross daily wages x 90 days) Mr K Woodward Mr K Woodward’s protective award amounts to £8,824.14 (£98.05 gross daily wages x 90 days) Case Numbers: 1601216/2018, 1601217/2018, 1601219/2018, 1601220/2018, 1601232/2018, 1601238/2018, 1601241/2018, 1601259/2018, 1601385/2018, 1601383/2018, 1601384/2018 & 1601261/2018 Mr G Barrett Mr G Barrett’s protective award amounts to £8,932.50 (£99.25 gross daily wages x 90 days) Mr P Bird Mr P Bird’s protective award amounts to £9,076.50 (£100.85 gross daily wages x 90 days) Mr L Dobbs Mr L Dobbs’s protective award amounts to £10,941.30 (£121.57 gross daily wages x 90 days) Mr P O’Neill Mr P O’Neill’s protective award amounts to £8,586 (£95.40 gross daily wages x 90 days) Mr J Elmore Mr J Elmore’s protective award amounts to £6,760.80 (£75.12 gross daily wages x 90 days) Mr R Crompton Mr R Crompton’s protective award amounts to £9,778.50 (£108.65 gross daily wages x 90 days) Mr C Webber Mr C Webber’s protective award amounts to £8,824.50 (£98.05 gross daily wages x 90 days) Mr G Stokes Mr G Stokes’s protective award amounts to £14,407.20 (£160.08 gross daily wages x 90 days) Case Numbers: 1601216/2018, 1601217/2018, 1601219/2018, 1601220/2018, 1601232/2018, 1601238/2018, 1601241/2018, 1601259/2018, 1601385/2018, 1601383/2018, 1601384/2018 & 1601261/2018 Miss S Phillips Miss S Phillips’s protective award amounts to £8,497.80 (£94.42 gross daily wages x 90 days)