Ms K Masalaki and Others v Vehicle Conversion Specialists Ltd (In Administration) and Secretary of State for Business and Trade: 1806208/2024 and Others

EMPLOYMENT TRIBUNALS

Case No 1806208/2024

Between

Ms K Masalaki and OthersClaimant

1) Vehicle Conversion Specialists Limited (In Administration) 2)Secretary of State for Business and TradeRespondent

Before

Employment Judge Lucy Bridge

Date 8 May 2025

JUDGMENT

[1]The First Respondent has failed to consult with employee representatives contrary to sections 188 and 188A of the Trade Union and Labour Relations (Consolidation) Act 1992.

[2]The First Respondent is ordered to pay remuneration to each of the claimants in the attached schedule for a protected period of 90 days beginning on the 27th of November 2023.

REASONS

[3]The claim forms were presented on 9 December 2023 and 9 February 2024 following periods of early conciliation that started on 4th December 2023 and ended on 8th December 2023 for Mr Smith and starting on 8th January 2024 and ending on 8th January 2024 for the remaining Claimants. The claim forms include claims for protective awards.

[4]On 9th July 2024 Legal officer Singh ordered that all of the claims in the attached schedule be heard together.

[5]On 26th July 2024 the Second Respondent submitted a response to the claims which neither resisted nor supported the claims.

[6]On 4th September 2024 Teneo Financial Advisory Ltd, who were acting as administrators to the First Respondent, wrote to the Tribunal consenting to the proceedings.

[7]On 20th February 2025 Employment Judge James invited the claimant’s solicitors and Mr Smith to provide witness statements. Issues

[8]The issues that fell to be decided in this case were the following:(1) Has the First Respondent failed to comply with its obligations under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992?

(2) If so, what protective award should be made under sections 189(2) to (4) of the Trade Union and Labour Relations (Consolidation) Act 1992?

The Hearing

[9]There was an agreed bundle of papers running to 84 pages.

[10]The bundle include statements from Simon Smith, Phillip Jackson solicitor on behalf of all scheduled Claimants save for Simon Smith and Dariusz Mierzejewski. The letter addressed to Mr Mierzejewski dated 28th November 2023 which terminated his employment was also included.

[11]I was asked to consider the written statements as the sole evidence on behalf of the Claimants save for Mr Smith who gave oral testimony on oath.

[12]The First Respondent made submissions that they do not contest any of the Claimants’ evidence and accept their claims are well founded.

[13]The Second Respondent made submissions that they are not in a position to comment on the Claimants’ evidence but request the Tribunal make enquiry into the eligibility of the Claimants to bring a claim and whether they worked at the same establishment.

[14]I have taken into account the oral evidence at the hearing, along with the written statements and submissions from all parties.

Findings of Fact

[15]I have made the following findings of fact based upon what I believe is more likely than not to have happened and applying the evidential test of the balance of probabilities. I have considered all of the evidence but have only referred within these findings of fact to those matters which are relevant to the determination of the list of issues.

[16]All of the Claimants were employees of the First Respondent. They all worked at the same location in Staithgate Lane in Bradford.

[17]In total the First Respondent employed 146 employees. There were no recognised trade unions and no elected employee representatives.

[18]On 20th November 2023 the First Respondent went into Administration.

[19]Between 20th and 23rd November the First Respondent wrote to employees informing them that the First Respondent had gone into administration and that they should continue to work as normal.

[20]On 27 November 2023 the First Respondent dismissed140 employees by reason of redundancy.

[21]All 140 employees were based at the same premises in Bradford.

[22]There was no consultation about the redundancies with employees, with trade union representatives or with any other employee representatives.

[23]The First Respondent did not invite employees who were affected by the redundancies to elect representatives to be consulted about the redundancies.

The Law

[24]Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 sets out the duty of employers to consult representatives about collective redundancies: “1)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. 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. (1B) For the purposes of this section the appropriate representatives of any affected employees are– (a)if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union, or (b)in any other case, whichever of the following employee representatives the employer chooses: – (i)employee representatives appointed or elected by the affected employees otherwise than for the purposes of this section, who (having regard to the purposes for and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf. (ii)employee representatives elected by the affected employees, for the purposes of this section, in an election satisfying the requirements of section 188A (1). (2) The consultation shall 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. Section 189, provides that: “(1) 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 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. (1A) 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. (1B) On a complaint under subsection (1)(a) it shall be for the employer to show that the requirements in section 188A have been satisfied. (2) If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award. (3)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. (4) 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 days”

Conclusions

[25]All of the Claimants worked at a single site, namely Staithgate Lane in Bradford. Both the Claimants and the First Respondent submit that this is one establishment, and I accept this is the case.

[26]I accept the evidence of Simon Smith, Phillip Jackson and Dariusz Mierzejewski as it is not in dispute as confimed by the First Respondent. I therefore accept that more than 20 employees were made redundant on the same date, namely 27th November 2023 so within 90 days of each other.

[27]The First Respondent did not recognise any trade unions in relation to the employees who were affected by the redundancies. There were no elected employee representatives who could have been consulted about the redundancies.

[28]The First Respondent did not invite the employees affected by the redundancies to elect representatives for the purposes of consultation and no consultation took place.

[29]There are no circumstances which would render it not reasonably practicable for the First Respondent to comply with the requirements of s188.

[30]Therefore, the Claimant’s claims under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 are well founded.

[31]The First Respondent has not made any representations as to why the maximum award of 90 days pay should not be made.

[32]This was a complete failure on the part of the First Respondent to comply with section 188 and as such I am satisfied that a protected period of of 90 days is appropriate.

[33]The First Respondent is therefore ordered to pay remuneration for the period of 90 days to the employees listed in the Schedule. Employment Judge Bridge Date: 8 May 2025 Schedule of Claims Case Number Claimant Name 1806208/2024 Ms Krzysztof Masalski 1806209/2024 Mr Jan Lacko 1806210/2024 Mr Bartosz Grabowski 1806211/2024 Mr Rafal Trochim 1806212/2024 Mr Jacek Mielcarek 1806213/2024 Mr Marek Piatek 1806214/2024 Mr Maciek Dziok 1806215/2024 Mr Mihaly Szabo 1806216/2024 Ms Rachel Metcalfe 1806217/2024 Mr Michael Scaife 1806218/2024 Ms Vicki Franklin 1806219/2024 Mr Craig Ogden 1806220/2024 Mr Pawel Slupik 1806221/2024 Ms Justyna Slupik 1806222/2024 Ms Alison Foster 1806223/2024 Mr Cosmas Omotayo 1806224/2024 Mr Paul Abson 1806225/2024 Mr Daniel Gryta 1806226/2024 Mr Aaron Gill 1806227/2024 Mr Barry McMullen 1806228/2024 Mr Marek Gorniak 1806229/2024 Ms Justina Heaton 1806230/2024 Ms Olivia Vincent 1806231/2024 Ms Sarah Hardaker 1806232/2024 Mr Jozek Migdalski 1806233/2024 Ms Michelle Beard 1806234/2024 Mr Lukasz Choszczyk 1806235/2024 Ms Paulina Broniarek 1806236/2024 Mr Shamsher Khan 1806237/2024 Ms Rashel Miah 1806238/2024 Mr Brian Gumunyu 1806239/2024 Mr Arif Patel 1806240/2024 Mr Daniel Shaw 1806241/2024 Mr Dave Lambert 1806242/2024 Mr Dave Maher 1806243/2024 Mr Mason Bray 1806244/2024 Mr Simon Wood 1806245/2024 Mr TIbor Toth 1806246/2024 Mr Arunas Pocius 1806247/2024 Mr Nigel Heaton 1806248/2024 Mr Atiqur Rahman 1806249/2024 Mr Krzysztof Mucha 1806250/2024 Mr Suhayl Khalifa 1806251/2024 Mr Feroz Khan 1806252/2024 Mr Daumantas Visniauskas 1806253/2024 Mr Dariusz Mierzejewski 1806254/2024 Ms Katarzyna Jadczak 1806255/2024 Mr Darren Wilkinson 1806256/2024 Mr Marcin Adamski 1806257/2024 Mr James Green 1806258/2024 Ms Chloe Hall 1806259/2024 Mr Paul Mcdermott 1806260/2024 Mr Martin Hopwood 1806261/2024 Mr Mohammed Imran 1806262/2024 Mr Adam Bairstow 1806263/2024 Mr Grzegorz Machometa 1806264/2024 Mr Toni Whyte 1806265/2024 Ms Emily Rosser 1806266/2024 Mr Liam Koval 1806267/2024 Mr Eliasz Prokopowicz 1806268/2024 Mr Ricky Kain 1806269/2024 Mr Tony Abbott 1806270/2024 Mr Wojtek Adamski 1806271/2024 Mr Adrian Turner 1806272/2024 Mr Aron Crossley 1806273/2024 Mr Wayne Goldthrope 1806274/2024 Mr Simon Atkinson 1806275/2024 Ms Kate Stevens 1806276/2024 Mr Jakub Zalega 1806277/2024 Ms Karolis Venskunas 1806278/2024 Mr Dainius Visniauskas 1806279/2024 Ms Joanna Niznikowska 1806280/2024 Mr Sebastian Przybylski 1806281/2024 Mr Arif Fateh 1806282/2024 Mr Tanveer Hussain 1806283/2024 Mr Jake Tyrie 1806284/2024 Mr Micheal Kitchen 1806285/2024 Mr Jack Deary 1806286/2024 Mr Lonut Lazar 1806287/2024 Mr Mason Tinker 1806288/2024 Mr Matthew Marsh 1806289/2024 Ms Ella Knox 1806290/2024 Mr Gordon McDonald 1806291/2024 Mr Beever Philip 1808923/2023 Mr Simon Smith