E Brandon and others v Quinn Radiators Ltd (In Administration) and Secretary of State for Business, Energy and Industrial Strategy: 1601811/2019 and others
JUDGMENT
It is the unanimous decision of the Tribunal sitting that:(1) The protective award complaints are well founded in that the first respondent failed to comply with its statutory collective consultation obligations under section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992 [“TULCRA”] before proposed redundancy dismissals took effect at its establishment in Newport, South Wales on 10 June 2019 and thereafter;(2) Under section 189(1)(c) and (d) and sections 189(2),(3) and(4) the Tribunal makes a protective award for the following employees who were dismissed as redundant and in respect of whose dismissal the First Respondent failed to comply with a requirement of section 188: 1601811/2019 Elisabeth Brandon 1601801/2019 Cheryl Castree 1601807/2019 Sarah Dixon (Pilkington) 1600042/2020 Teresa Graham 1602063/2019 Sandra Haste 1600028/2020 Sian Hobbs 1602059/2019 Joanne Holvey 1602091/2019 Nebeel Javaid 1601820/2019 Hamsaveni Jayapal 1601804/2019 Lee Kenney 1600058/2019 Liam Kinsey 1601788/2019 Jamie Lewis 1601816/2019 Anthony Lock 1600022/2020 Jonah Lynch 1601139/2020 Debbie Moran 1600918/2019 Reda Navickaite 1600018/2020 Adam Newman 1602074/2019 Michael Patching 1601806/2019 Julian Reed 1602072/2019 Alison Rollings 1600051/2020 Jasper Taylor 1602122/2020 Julie Maguire (Williams) 1600877/2019 & 1600878/2019 &1602089/2019 Gary Wakeham: (a) The protected period is 90 days running from the 10 June 2019; (b) The First Respondent is therefore ordered to pay remuneration to the above description of employees for the protected period of 90 days beginning with 10 June 2019; (c) The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply to these awardsREASONS
[1]We previously gave Judgment on 8 February 2022 for Unite the Union on behalf of those employees who fell within the recognised bargaining unit and for some individual employees who fell outside it’s terms. Today’s hearing was listed for an additional set of claimants who had not been identified as being in need of an individual Judgment at the time of that last hearing.[2]We are satisfied that the 23 employees before us fell outside the recognised bargaining unit and there were no other employee representatives elected such that the duty to consult under section 188 lay with a duty to consult with these individual employees.[3]We are satisfied that these 23 claimants were all assigned to the one establishment namely the site of the First Respondent at Imperial Park in Newport. We have heard that some staff, particularly sales staff, worked out in the field where they visited clients, travelling from their home address. We are satisfied that such employees were still assigned to the Newport site. It was where they would attend if needed, for example, for meetings, and where they received their source of work and administrative support from. With the Newport site closing, they had no work to do with no products to sell and no clients to service.[4]On 10 June 2019 the majority of employees attended the site for work, and without any warning whatsoever at all, discovered the factory was closed to all employees as the administrators had been called in. Employees were sent round the back of the factory and called into group meetings to largely be told they were being made redundant with immediate effect. They were to collect their belongings and leave. A small group were kept on temporarily by the administrators in fields such as IT and finance, but were still ultimately made redundant because of the closure of the factory. Those who were not in attendance that day, received similar news by other means. It was an appalling shock to all concerned. There were about 280 members of staff ultimately made redundant.[5]We are satisfied from the witness evidence before us at the last hearing and before us today that there was no warning or notice or consultation of any kind whether with Unite the Union or with individual employees. There was no attempt to appoint employee representatives for those who did not benefit from the trade union recognition agreement.[6]We are therefore satisfied that there was a breach of section 188 TULCRA. The First Respondent was proposing to dismiss as redundant 20 or more employees based at one establishment within a period of 90 days or less. They failed in their duty to undertake consultation in good time and in any event within 45 days before the first dismissal took effect. There was no consultation at all let alone consultation about avoiding dismissals, reducing the numbers of employees to be dismissed, and mitigating the consequences of the dismissals (Section 188(2). There was no disclosure of the information required by section 188(4). No special circumstances defence has been run. No mitigation arguments have been put before us.[7]The case law in the area is clear that compensation is designed to be punitive, and the starting point should be 90 days’ pay with a discount to be applied having regard to the seriousness of the failure of the employer to comply with his duty, if there are material mitigating factors. There has been a complete failure of consultation. There are no mitigating factors and we award the maximum 90 days. We are satisfied that such a protected period is of such length that we consider just and equitable in all the circumstances having regard to the seriousness of the First Respondent’s default.[8]The First Respondent is advised of the provisions of Regulation 5 of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996, such that, within 10 days of the decision in these proceedings being promulgated or as soon as is reasonably practicable, the First Respondent must comply with the provisions of Regulation 6 of the 1996 Regulations and, in particular, must supply to the Secretary of State the following information in writing:(a) the name, address and national insurance number of every employee to whom the award relates; and(b) the date of termination of the employment of each such employee. The First Respondent will not be required to make any payment under the protective awards made until it has received a recoupment notice from the Secretary of State or notification that the Secretary of State does not intend to serve a recoupment notice having regard to the provisions of Regulation 7(2). The Secretary of State must normally serve such recoupment notice or notification on the employer within 21 days of receipt of the required information from the Respondent.[9]There is one remaining claimant, Maura McCabe (1600047/2020). We declined to determine her claim today as factually her situation is more complicated. We need to hear more evidence about whether Ms McCabe was assigned to the unit in question. Her claim will be relisted for a further hearing on a future date with a time estimate of 2 hours.