Miss A Sarkar and Others v SSB Group Ltd (in administration) and Secretary of State for Business and Trade: 1801764/2024 and Others
JUDGMENT
[1]The First Respondent has failed to comply with the provisions of section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992 by not electing or consulting with appropriate employee representatives.[2]Claimants (3), (4), (5), (6), (7), (8), (9) & (10) are each entitled to a protective award for a period of 90 days beginning on 29th November 2023.[3]The First Respondent is under a duty to provide the required information to the Secretary of State under regulation 5 (2) (6) of the Employment Protection (Recoupment of Benefits) Regulations 1996 within 10 days. That information isa. the name, address and national insurance number of every employee to whom the award relates; andb. the date of termination (or proposed termination) of the employment of each such employee.[4]Any remuneration to which the Claimants are entitled from the First Respondent under this protective award payment is stayed pursuant to regulations 7 and 8 of the Employment Protection (Recoupment of Benefits) Regulations 1996.REASONS
[1]A previous judgment in respect of a protective award against the First Respondent was made by EJ Lancaster on the 17th June 2024.[2]Each of the Claimants whose claims were considered at this hearing were claiming for the same consultation period.[3]The Tribunal had written to each of the Claimants prior to this hearing to ask them to confirm that3.1 They were only pursuing a claim for a protective award; the administrators of the First Respondent had only given consent for a protective award claim to proceed.3.2 Whether they were dismissed after the end of the protective period (90 days from the first dismissal, which was on the 29th November 2023). If they were dismissed after that date, the Claimants were asked to explain why they considered that they fell under the definition of “affected employees” under section 188(1) of the Trade Union & Labour Relations (Consolidation) Act 1992.[4]All Claimants save (1), (2) and (6) had replied to confirm that their claim was only for the protective award. Ms R Berry confirmed orally at the hearing that she was only pursuing a claim for the protective award. As stated above, Claimants(1) and(2) did not attend the hearing or respond to the Tribunal’s request for information at all.[5]Claimants (4), (6), (7), (8), (9) and (10) were dismissed after the end of the protective period. They each explained that they were part of the group of 20 or more employees who were being considered for redundancy in the protective period and that their employment ended by way of redundancy eventually, albeit after the end of the protective period.[6]I was satisfied, based on this explanation that they were “affected employees”. They were employed during the protective period and would have been impacted by the redundancies either by being considered for selection or because their colleagues were being selected. They were therefore entitled to be consulted about the redundancy during the protective period.[7]As such, Claimants (3)-(10) were all eligible for a protective award.[8]There was no consultation at all by the First Respondent before dismissing all affected employees as redundant. No response has been submitted by the First Respondent to explain the failure to consult.[9]It is therefore just and equitable to make a protective award for the full 90-day period.[10]The Recoupment Provisions apply, though it is anticipated that no monies will actually be received directly from the insolvent former employer, but that the incidence of benefits will be separately and further accounted for under the relevant regulations when determining the amount payable by the Second Respondent from the redundancy insurance fund.[11]In respect of Claimants (1) and (2), as they did not attend, I do not consider I have sufficient information in order to make a judgment in their favour. They will be asked to respond to the tribunal to explain their non-attendance and to confirm the information they were asked to provide. It may be possible to make a judgment on the information provided alone, without the need for a further hearing.