C Webb and Others (See Schedule) v Formation Furniture Ltd (In Administration): 1601865/2020
EMPLOYMENT TRIBUNALS
Case No 1601865/2020, 1600010/2021, 1600033/2021, 1602036/2021, 1602240/2020, 1602764/2020
Between
Miss C Webb & OthersClaimantFormation Furniture - In AdministrationRespondentDate 14 October 2021
JUDGMENT
[1]UPON a reconsideration of the judgment dated 14 September 2021 on the Tribunal’s own initiative under rule 73 of the Employment Tribunals Rules of Procedure 2013, and without a hearing:a. The following claimants have permission to amend their claim to include a claim for a protective award under Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A 1992”) and they are to be included in the schedule of claimants listed in the schedule attached to the judgment of 14 September 2021 (“Schedule”). i. 1600010/2021 Mr L Lewandowski ii. 1600033/2021 Mrs I Frasin iii. 1602036/2021 Mr DJ Keetch iv. 1602240/2020 Mrs P Bees v. 1602764/2020 Mr MP Erikb. The following claimants had brought claims for a protective award under Section 188 of the TULR(C)A 1992 prior to the final merits hearing on 14 September 2021 but their names had been omitted from the Schedule as a result of a clerical error. The names are to be included in the Schedule: i. 1602013/2020 – Ms J Butler ii. 1602018/2020 – Mr R Hughes[2]The remainder of the judgment of 14 September 2021 is unvaried.
REASONS
[1]The claimants had all brought claims in the Wales Employment Tribunal which had been issued prior to the final merits hearing which had taken place by video on 14 September 2021. Case No. 1601865 / 2020 (See Schedule)[2]Prior to the final merits hearing, claimants who had not indicated that they were bringing a claim for a protective award were asked if they wished to amend their claim.[3]By the date of the final merits hearing, the following claimants had still not responded and were not included within the schedule of claimants attached to the judgment given on 14 September 2021 and sent to the parties on 14 September 2021:a. 1600010/2021 Mr L Lewandowskib. 1600033/2021 Mrs I Frasinc. 1602036/2021 Mr DJ Keetchd. 1602240/2020 Mrs P Beese. 1602764/2020 Mr MP Erik 3. Since the final merits hearing however these claimants have sought permission to amend their claims and permission has been granted having applied the overriding objective and following consideration of the claimants’ written submissions on amendment.[4]On that basis, I have reconsidered the judgment and concluded that their names should be added to the Schedule attached to the judgment.[5]Further, I concluded that the following claimants had been omitted from the Schedule in error and that in those circumstances, the Schedule should be further varied to included their claims:a. 1602013/2020 – Ms J Butlerb. 1602018/2020 – Mr R Hughes[1]By individual claim forms presented on various dates, the Claimants brought a variety of claims, including claims for a protective award under s.188 and s.189 Trade Union and Labour Relations (Consolidation) Act 1992 (“Protective Award”) in respect of breach of the collective consultation requirements.[2]As the Respondent company was in administration, all claims were stayed by the Employment Tribunal, and the Claimants were informed that they should seek the consent of the Administrator for consent for the claims to be continued against the company.[3]On 29 December 2020, the Joint Administrators appointed (the “Administrators”) wrote to the Tribunal confirming that they gave consent to the stay being lifted, but only in respect of claims made against the company and for claims for a Protective Award (“PwC letter”). They also indicated that the Respondent would take no active part in the proceedings.[4]No response was presented to the claims by Respondent but, within the PwC letter, the Administrators asserted that there were ‘special circumstances’ rendering it not reasonably practicable for the Respondent to comply with s,188(1A) (2) and (4) of the Trade Union and Labour Relations (Consolidation) Act 1992, namely ‘an assessment that the business could not continue without offers for the business, and so continuing operations would not be in the best interest of the wider body of creditors to whom the administrators are accountable’[5]Within the section entitled ‘Background and key information’ the following was asserted:• We made every effort to enter into meaningful consultation with the employees and local management arranged a "show of hands" election process for the appointment of employee representatives.• On 15 July 2020 we arranged a conference call with each of the representatives from across the Group. This was necessary due to the Covid 19 pandemic which prevented face to face meetings as well as the number of geographic locations within the Group. There were further conference calls on 22 July, 30 July and [any more?]. Following each call, a note of the key messages and a Q&A were distributed to the employee representatives.• We concluded that despite our very best efforts we would not be able to find a party who was willing to acquire the business as a going concern. In fact, we had no offers for the business.• As a result we had to undertake an immediate review of the businesses whereupon it was established that the only viable option was to cease operations and decommission the site. We were unable to implement a period of furlough because a key requirement of the Coronavirus Job Retention Scheme was that there should be an ongoing role for staff. The only alternative was redundancy for all employees who were not required for the decommissioning process.• The consultation period continued for a period of 34 days, concluding on 18 August 2020 when the first dismissal took effect.• It was identified that 11 roles would be required for a short period of time and so on 12 August 2020 we gave notice of redundancy to 210 employees that their employment would end on Tuesday 18 August 2020 as a result of compulsory redundancy.• There are currently 2 remaining employees whose roles are expected to end in compulsory redundancy early in 2021.[6]They denied that the Claimants were entitled to a declaration and/or protective award and submitted that if a declaration was to be made that the amount of any protective award be reduced as a result of the steps that the Respondent did take to comply as set out in that ‘Background and Key Information’ section.[7]By the commencement of this hearing some claimants, that had brought proceedings against the Respondent, had not brought claims for protective awards and had still not, despite the Tribunal writing to all Claimants on 17 August 2021, indicated to the Tribunal that they wished to amend their claim to include claims for a protective award.[8]One claimant, Teresa Fitzgerald (Claim no 1601980/2020) had emailed the Tribunal on 3 September 2020, and had confirmed that she wished to claim a protective award. As the Administrator for the Respondent had confirmed on 24 August 2020, that the Administrators had no objection to any party amending their claim to include a claim for a protective award, that application was granted at the commencement of the hearing and her name was added to the Schedule of Claimants.[9]The Tribunal heard evidence from one of the Claimants, Caroline Webb (“Miss Webb”,) and had before it a bundle of documents that had been provided by Ms Webb, which we agreed would be numbered 1-43. References to pages in the Bundle are denoted by [] in these written reasons. Miss Webb also gave live evidence as a Claimant and was asked questions on her evidence.[10]The Tribunal also had the benefit of witness statement, that had been provided from Halinka Lane (also known as Halinka Mulrooney (claim number 1601997/2020)), sent in to the Tribunal on 1 September 2021. Halinka Lane did not attend the hearing to give live evidence and despite having been asked if she wished to apply for a witness order to secure her own attendance for her current employment purposes, had not done so.[11]No other Claimant attended to give evidence, although two Claimants did briefly participate in the CVP, observing only.[12]No one attended, and no witness statement was sent in, on behalf of the Respondent and/or the Administrators.
Findings
[13]The Tribunal makes the following findings on the balance of probabilities.[14]The Respondent was a subsidiary, a separate limited company, within the Blue Group of companies (the “Blue Group”). The Respondent manufactured upholstered and other goods, for intra Blue Group company sale and in turn its retail, through its outlets t/a Harveys and Benson for Beds. Relyon Limited was also a Blue Group subsidiary (“Relyon”).[15]The exact number of employees that the Respondent employed was not available, but I accepted the evidence of Miss Webb, as reflected in the PwC letter, that it was in excess of 200. It operated from premises at Bridgend in South Wales and was a stand-alone business within that larger Blue Group of companies.[16]There was no trade union recognised for collective bargaining, consultation or negotiation with the workforce.[17]On 23 March 2020, as a result of the Covid-19 pandemic and government ‘lockdown’, all staff, or at least the majority of staff of the Respondent were placed on furloughed and remained on furlough until around May 2020 when some staff were asked to return to work.[18]Miss Webb, who had been the Respondent’s Systems and Compliance Manager, and part of the management team and not asked to return to work. Likewise Mr Kai Winders, the Respondent’s Head of Design, also part of the management team, remained on furlough. She was informed that this was to ensure social distancing.[19]No specific numbers of staff, that remained on furlough, were known to Miss Webb but she believed that around 50% of staff remained on furlough to ensure social distancing within the workplace could be accommodated whilst the Respondent resumed its operations. She was unconvinced that this should have applied to management team insofar as they had their own office space.[20]From May 2020 through to 30 June 2020, staff that had been ‘unfurloughed’ i.e. told to return to work, were working on fulfilling the Respondent’s orders that had been place pre-lockdown. During this period all staff received updates from the CEO of the Blue Group, Mark Jackson, updating them on the re-opening of sites and production. All such communications were positive and gave indication that normal trading would resume after lockdown [4][6] and [7].[21]On 30 June 2020, an email was sent by Mark Jackson to all staff confirming that the Blue Group had taken the decision to call upon administrators and that it was anticipated that PwC would be appointed administrators during the course of that day [9].[22]It followed that on 30 June 2020, Peter Dickens, Julia Marshall and Ross Connock of accountants PwC were appointed Joint Administrators of various companies within the Blue Group, including the Respondent.[23]Later that day, staff were invited to a ‘Web-Ex’ call, an audio conferencing platform, when they were told that administrators had been appointed. The message was not a two way-communication and there was no ability for staff to engage in discussion or ask questions during that conference.[24]Miss Webb’s evidence was that she had no recall that any information was provided in that Web-Ex regarding appointment of employee representatives and that no information, additional to that contained in the FaQs document [13] that was subsequently sent that day, was given.[25]On the basis of Miss Webb’s recall and the written FaQs document, which did not refer to election of employee representatives or indeed a proposal to dismiss by reason of redundancy, I found that: a) no information was provided to staff that day regarding the election of employee representatives; b) no information was provided to staff regarding potential redundancies.[26]Indeed I found that the only information that was provided was that contained within the FaQs document and in particular at the second page [14]. This posed two questions: a) ‘Will there be any redundancies today?; and b) ‘What happens if I am made redundant?’.[27]Neither response indicated that staff were provided with any information regarding election of employee representatives or matters which could form the subject of consultation. Indeed nothing in those answers reflected that there was a proposal to dismiss by reason of redundancy at that stage.[28]Miss Webb was asked to agree continuation of furlough by the Administrators on 10 July 2020 [17]. I considered it more likely than not that all furloughed staff would have received the same email.[29]In that email, staff were assured that changes were temporary and were proposed as a viable alternative to immediate redundancies. Affected staff were informed that if the Administrators were able to sell part of the business that they worked for, they anticipated that employment would transfer to the new employer on existing terms and conditions,[30]The email also stated that in the event that the role was no longer required after the furlough period and they were made redundant, the Respondent would be unable to pay amounts that may be due as a result of employment ending and staff would be asked to make a claim to the Redundancy Payment Scheme for these amounts. Again, no reference is made to election of employee representatives and/or to information set out in s.188(4) TULR(C)A 1992.[31]Formal confirmation of appointment was sent by the Administrators on 13 July 2020 [21]. Within that letter it was expressly stated ‘for the avoidance of doubt this letter does not constitute notice of redundancy’. The only reference to redundancy related to a question posed ‘What happens in the event your role is made redundant?’ where the response provided ‘In the event that your role is no longer required and you are made redundant, the Company will be unable to pay you the amounts that may be due to you………’[32]Miss Webb tells me that she heard nothing further following that letter and as a result she contacted Ms Lane, who was employed as Supply Chain/Purchasing Manager and who Miss Webb knew had returned to work. Miss Webb asked Ms Lane if she knew what was was happening.[33]Miss Webb’s evidence was that Ms Lane told her that there had been no updates, just business update meetings, which furloughed staff were not part of, and that she had seen no notes of such meetings, which had been taken by PwC staff.[34]No information was provided to Ms Webb regarding appointment of employee representatives.[35]As a result, Miss Webb contacted the HR Manager of the Respondent, who in turn directed her to the HR Manager of Relyon. Relyon’s HR Manager advised Miss Webb that there had been some meetings and in turn sent Miss Webb a copy of the business update meeting that had taken place on 22 July 2020 [24]. She told Ms Webb that there had been an initial meeting on 15 July 2020, when no real information had been disseminated and all companies within the Blue Group had attended, when it had been decided that subsequent meetings would be specific to the individual subsidiaries.[36]No notes of that earlier meeting, on 15 July 2020 were provided to Miss Webb and in turn no notes of that meeting were in the Bundle. The Respondent has not provided any documentary evidence to support the assertions set out in the PwC letter.[37]The notes of the 22 July meeting [24] reflect that the meeting was referred to as an ‘Employee Forum’ and that representatives of PwC attended as did representatives of Relyon and the Respondent.[38]The Administrators asserted in the PwC letter that a ‘”show of hands” election process for the appointment of employee representatives’ was undertaken.[39]There is no evidence before me to support that assertion. a) There is no indication on the face of the Employee Forum notes (or 22 July 2020 or indeed 30 July 2020), the status of the meetings, or more particularly the status of the individuals attending. b) The notes, nor indeed any other document, do not indicate or assist in determining how those participating had been selected to participate or why; c) Miss Webb is unable to provide me with direct evidence as she was furloughed and was not in work to know from personal witness whether this process took place and, if so, when.[40]I accepted Miss Webb’s evidence that no furloughed staff had been contacted regarding appointment of employee representatives, or had been asked to participate in the election of employee representatives.[41]Miss Webb tells me however that she had spoken to the HR Manager, who had been in work during these meetings, who informed her that there had be no ‘show of hands’; that all PwC had requested was a cross-section of employees to attend business update meetings and that as a result of that request, the management team from the Respondent had randomly selected staff to attend.[42]Whilst this evidence was hearsay, taking into account there was no evidence, either documentary or witness evidence from the Respondent, I did not find on balance of probabilities that there had been a ‘show of hands’ election as asserted by the Respondent.[43]Furthermore, when reviewing the notes of the 22 July 2020 meeting, these notes reflect that what was discussed was that the businesses were continuing to trade and that the Administrators were continuing to seek buyers for both Relyon and the Respondent, although at that stage it appeared that Relyon had already made some redundancies..[44]Miss Webb also indicated to me that the notes reflected to her that whilst manufacturing appeared to be continuing, this was in respect of orders to w/e 14 August 2020 only due to references at paragraph 5 of ‘targeted completion date of w/e 14 August 2020’ in respect of order book inherited on administration.[45]Miss Webb subsequently received notes of the meeting of 30 July 2020 the from the HR Manager of Relyon [27] which again reflected production continuing as normal working through the existing order book and with the intent of the Administrators to sell the business as a going concern. References to the ‘existing order book’ during week ending 14 August 2017 was repeated but reflect that the Administrators expressly stated that ‘this date is not necessarily when we are preparing to close the business’ and that the Administrators did not have a policy of ‘setting deadlines’. There was no indication at that point that there was a proposal to dismiss as all content indicated that the Administrators were ‘working very hard to secure options of the business’ as it was put.[46]Miss Webb does not know whether any other employees received these documents. Miss Webb was a senior manager and had taken it upon herself to engage with HR, at both the Respondent and Relyon and, on the basis of her efforts, had been personally provided this documentation by a work colleague at Relyon.[47]I found that it was more likely than not, that other staff would not have been provided with this documentation as a result. This included furloughed staff but also staff that had returned to work.[48]On 12 August 2020, staff were again asked to join a Web-Ex call [33], when they were informed that as the Administrators had no offers for the business of the Respondent, their roles were identified as redundant. They were given notice that their employment would end on 18 August 29020 as a result of compulsory redundancy. This was confirmed in a follow up email [33] and again in a hard copy letter dated 18 August 2020 [35] received some weeks after that day, around 28 August 2020. The letter confirmed that staff were given notice on 12 August 2020 and that their employment would end on 18 August 2020.[49]For completeness, on 3 September 2020 the Claimant received an email from the Hr manager at Relyon regarding the ability to claim a protective award [39] and on 6 September 2020, PwC sent an email to Julia Davies and Julian Waite, employees of the Respondent regarding the ability to make a claim for a protective award [42].
The Law
[50]S.188(1) TULR(C)A1992 provides that 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.[51]S.188(1A) provides as follows: 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 45 days , and b) otherwise, at least 30 days, before the first of the dismissals takes effect.[52]Any election that ensues should be conducted in accordance with the detailed list of requirements for the election of employee representatives set out in S.188A TULR(C)A.[53]S.188(2) sets out that the consultation should 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[54]Section188(4) sets out the information that the employer should disclose in writing to the appropriate representatives as being: 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 the 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 an 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 those agency workers are carrying out.[55]Section 188A(1) provides that: a) the employer must make such arrangements as are reasonably practicable to ensure that the election is fair b) it is the employer’s responsibility to determine the number of representatives to be elected. The employer must ensure that there are sufficient representatives to represent the interests of all the affected employees, having regard to the number and classes of those employees c) the employer must determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees — d) before the election, the employer must determine the employee representatives’ term of office. The term of office must be long enough to enable the information and consultation process to be completed — e) the candidates for election as employee representatives must, on the date of the election, be affected employees f) no affected employee may be unreasonably excluded from standing for election g) all those who are affected employees on the date of the election are entitled to vote h) the employees may vote for as many candidates as there are representatives to be elected to represent them or their particular class of employee i) so far as is reasonably practicable, voting must be in secret and the election should be conducted so as to ensure that the votes are accurately counted[56]S.188(7) provides what is known as the ‘special circumstances’ defence as follows: If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsection (1A), (2) or (4), the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances. .[57]There is no definition of ‘special circumstances’ but the Court of Appeal in Clarks of Hove Ltd v Bakers’ Union 1978 ICR 1076, CA, held that a ‘special circumstance’ must be something ‘exceptional’, ‘out of the ordinary’ or ‘uncommon’.[58]Even where special circumstances are shown, these do not absolve the employer from complying with the consultation requirements in respect of which compliance was reasonably practicable or which were not affected by the special circumstances. The employer must still take all steps towards compliance as are reasonably practicable in the circumstances of the case and in Clarks of Hove the Court of Appeal pointed out that insolvency is not on its own a special circumstance. Far from being ‘exceptional’ or ‘out of the ordinary’, insolvency is in fact a fairly common occurrence. In the Court’s view, whether special circumstances exist will depend entirely on the cause of the insolvency.[59]Where an employer has failed to comply with a requirement of section 188 or section 188A, a complaint may be presented to an employment tribunal under s.189 on that ground– a) in the case of a failure relating to the election of employee representatives, by any of the affected employees or by any of the employees who have been dismissed as redundant; b) in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related, c) in the case of failure relating to representatives of a trade union, by the trade union, and d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant.[60]S189 (1A) provides that If on a complaint under subsection (1) a question arises as to whether or not any employee representative was an appropriate representative for the purposes of section 188, it shall be for the employer to show that the employee representative had the authority to represent the affected employees.[61]S.189(1B) provides that On a complaint under subsection (1)(a) it shall be for the employer to show that the requirements in section 188A have been satisfied.[62]If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award.[63]A protective award is an award in respect of one or more descriptions of employees— a) who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and b) in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188, ordering the employer to pay remuneration for the protected period.[64]The protected period— a) begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and b) is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with any requirement of section 188; but shall not exceed 90
Conclusions
[65]The claimants were entitled to bring complaints under s.189(1)(d) as there was no recognised trade union and no employee representatives. I was not persuaded that employee representatives had been appointed in accordance with s.188A, having accepted the: a) evidence of Miss Webb, regarding what information she had personally received as a furloughed member of staff, from which I concluded that no information had been provided to furloughed staff regarding appointment of employee representatives; and b) hearsay evidence, regarding what she was told by staff who had been present regarding the attendance at the Employee Forum, from which I concluded that election of employee representatives under section 188(1B)(ii) had been undertaken.[66]I did not accept the assertion from the Respondent that there had been election of employee representatives by a ‘show of hands’, on the basis of the my findings.[67]Even if I had been persuaded there had been such a ‘show of hands’ of those staff that had returned to work, I concluded that this did not meet the requirements of s188A(1), in that furloughed staff had been unreasonably excluded from standing and had not been able to vote.[68]I therefore concluded that no employee representatives had been elected or appointed for any such consultation within the requirements of s188A and as such, I was satisfied that the Claimants had the ability to bring these claims under s.189(1)(d).[69]It was not in dispute that the Respondent had proposed to dismiss as redundant 20 or more employees at one establishment, the dismissals of in excess of 210 of the Respondent’s workforce being put into effect on 18 August 202, notice having been given on 12 August 2020.[70]Turning to the consultation. I was not persuaded that there had been any proper warning, or notice given to or consultation with the workforce.[71]The meetings that had taken place in an Employee Forum did not reflect that the Respondent had either: a) Disclosed in writing any information required by s.188(4); or b) That any discussions included the consultation, required by s.188(2).[72]I was not persuaded that the Respondent had demonstrated any facts that supported their special circumstances defence. That the Administrators were seeking a buyer for the business of the Blue Group companies and in particular, for the Respondent business, was not in my view exceptional or out of the ordinary. That the Administrators were unfortunately unsuccessful in those efforts, again is neither exceptional or out of the ordinary, particularly in these times. There was no evidence to suggest that an inability to find a purchaser for the business and a conclusion that continuation would not be in the best interests of the creditors was anything than a fairly common occurrence for administrators[73]In these circumstances, I concluded that the Respondent was in breach of the duty under Section 188 of the 1992 Act and made period of 90 days commencing on 18 August 2020.[74]The 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 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.[75]The 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 first respondent.
Conclusions
[1]UPON a reconsideration of the judgment dated 14 September 2021 on the Tribunal’s own initiative under rule 73 of the Employment Tribunals Rules of Procedure 2013, and without a hearing: a. The following claimant is removed from the schedule of claimants listed in the schedule attached to the judgment of 14 September 2021 (“Schedule”). i. 1602110/2020 - Mr Leighton Ketcher[2]The remainder of the judgment of 14 September 2021 is unvaried.[3]The claimant, Mr Leighton Ketcher is removed from the Schedule as, despite bringing a claim against Formation Furniture Ltd – in administration, both Mr Ketcher (by way of letter to the Tribunal on 25 February 2022) and the administrator confirmed that Mr Ketcher was employed at all relevant times by Blue Group UK Retail Limited and not Formation Furniture Ltd.