Mr S Botley and Mr L Canning v STA Travel Ltd (In voluntary liquidation): 1602232/2020 and 1602305/2020
JUDGMENT
The claims are not well-founded and are dismissed.REASONS
[1]By a claim form presented on 26 October 2020 and 4 November 2020 respectively, the Claimants claimed a protective award in respect of breach of the collective consultation requirements. The final hearing was listed for 2 March 2021. No response was presented to the claims by Respondent and the Respondent did not seek to make any representations.[2]No rule 21 judgment had been entered but, prior to the hearing, Judge Harfield had directed the Claimants to confirm in writing how many employees worked in the place that the Claimants worked. Case No. 1602232/2020 [V] 1602305/2020 [V] 2[3]On 16 December 2020, Mr Botley had confirmed by way of email that ‘the Cardiff store at the time the company filed for insolvency there were 5 members of staff.’[4]By way of further email on 1 February 2021, Mr Botley emailed the Employment Tribunal, enclosing a copy of a Judgment, made on 11 January 2021 in case numbers 2603282/2020 and 2603288/2021, in which a protective award had been made in respect of all salaried staff employed by the Respondent.[5]On 2 March 2021, the Claimants attended in person and both gave evidence. No written statements or bundle of documents were relied on by the Claimants during the hearing.[6]The Record of Hearing, sent to the parties on 3 March 2021, reflects that Claimants were given the opportunity to make further submissions prior to a reserved decision.[7]Since the hearing,a. the Judgment relied upon by the Claimants was subject to reconsideration by the Employment Judge of his own initiative, limiting the protective award in respect of Claimants who were employed at the Leicester branch as at 2 September 2020; andb. Detailed written submissions were provided by the Claimants in relation to ‘establishment’ (email of 16 March 2021 again from Mr Botley).[8]The Respondent carried on business supplying travel products and services through retail travel agency stores. There was no trade union recognised for collective bargaining, consultation or negotiation with the workforce.[9]The Claimants were both employed at the Cardiff branch of the Respondent based at Duke Street Cardiff.[10]Mr Canning had been employed from 4 June 201 by the Respondent and was Assistant Manager. Mr Botley had been employed as a Travel Expert since 2 January 2018.[11]The Claimants were two out of 5 employees who worked out of the Cardiff branch, a number that included the branch manager Sheryl Ali. The branch manager was responsible for the Cardiff branch including sales, sales leads and branch figures. She was also responsible for managing staff, including hiring of staff and planning of work rotas and schedules for staff at the branch.[12]The Cardiff branch fell within a region of branches, including Bristol, Bath, Exeter Cheltenham and Southampton. The Regional Manager was a Gillon Benoy, but he had no responsibility for either management of staff within the individual branches, individual branch targets or general management of the Cardiff branch. This remained with Sheryl Ali. Case No. 1602232/2020 [V] 1602305/2020 [V] 3[13]Following the national ‘Lockdown’, imposed on 23 March 2020 as a result of the Covid-19 pandemic:a. from 1 April 2020, Mr Canning was placed on furlough as part of the Coronavirus Job Retention Scheme and remained on furlough for the remainder of his employment; andb. Mr Botley carried on working throughout Lockdown, but working from home. In early July 2020, he returned to work at the Duke Street Branch.[14]On 21 August 2020, the Claimants were informed that the Respondent had ceased trading and, on 25 August 2020, they were informed that they would not receive payment in respect of salary but that their employment would continue until the end of August.[15]On 2 September 2020, the Claimants were informed that their employment was terminated.[16]On 12 October 2020, following resolution, the respondent company was formally put into creditors voluntary liquidation.[17]Whilst there was no proper warning or notice given to or consultation with the workforce. No employee representatives had been elected or appointed for any such consultation within Section 188A of the 1992 Act. The dismissals of the whole workforce were put into effect at once.[18]On 26 October 2020, Mr Botley issued a claim for a protective award following early conciliation that had commenced on 5 September 2020 and ended on 7 September 2020 and on 4 November 2020, Mr Canning issued a similar claim following early conciliation that had commenced for him on 6 September 2020 and on ended 7 September 2020.[19]In order for the consultation obligations under s.188 (1) Trade Union Labour Relations (Consolidation) Act 1992 to be engaged the requisite number of dismissals must be proposed at ‘one establishment’.[20]Whilst the Claimants did provide subsequent written submissions after having been given the opportunity to consider cases on the meaning of ‘establishment’ of Rockfon A/S v Specialarbejderforbundet I Danmark 1996 ICR 673 ECJ and USDAW and anor v Ethel Austin Ltd and ors 2015 ICR 675, after consideration of the evidence before me as presented by the Claimants, I have not been persuaded that this is not a case which involves employees at multiple establishments.[21]On the basis of my findings that the Claimants were engaged to work at the Cardiff branch that had its own sales targets, leads and branch figures, I concluded that the Cardiff branch was a separate ‘establishment’ Case No. 1602232/2020 [V] 1602305/2020 [V] 4[22]I concluded that the Claimants were assigned to carry out their duties at the unit or ‘establishment’ that was the Cardiff branch, and I was not persuaded that the regional team, or even a wider teams, was the unit to which the Claimants were assigned.[23]The proposal to dismiss as redundant therefore affected fewer than 20 employees, there being no more than 5 employees at the ‘establishment’ of the Cardiff branch and that on that basis, the duty to consult in respect of section 188 Trade Union Labour Relations (Consolidation) Act 1992 did not arise.[24]The claims for a protective award are therefore not well founded and are dismissed.