Ms H Worrell v Warehouse Fashions Ltd: 2202731/2020
JUDGMENT
The claim of Unfair Dismissal only is struck out.REASONS
[1]By a letter dated 22 January 2021 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the claim of Unfair Dismissal should not be struck out because it has no reasonable prospect of success.[2]The claimant has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The claim of Unfair Dismissal is therefore struck out.[3]Claims of Breach of Contract (notice pay) and for a Protective Award continue.[1]The first claimant’s complaint against the respondent of a failure to comply with the requirements of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 Act (‘the Act’) is well-founded.[2]The tribunal orders the respondent by way of a protective award under section 189(3) of the Act to pay to the first claimant a payment equivalent to remuneration for the period of 90 days beginning on 15 April 2020.[3]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply to this award.[4]The first claimant has brought claims for notice pay and holiday pay against the respondent. Notice of hearing in respect of that claim will be sent separately. In relation to the second claimant (Ms Marlow):[5]The second claimant’s claim is a duplicate of claim number 2203190/2020 in which judgment for a protective award was issued on 28 January 2022 and in which other claims are to be determined at a hearing to be listed. The tribunal has written separately to the second claimant about whether the duplicate claims should be struck out. Page 1 of 3[1]The claimant was employed by the respondent, a national British fashion retailer which went into administration on 15 April 2020. The claimant brought an employment tribunal claim which was stayed pending consent from the administrators of the respondent.[2]In the ET3 and grounds of resistance presented on 27 September 2021, the administrators of the respondent granted consent for the claimant’s claim against the respondent for a protective award to proceed. The respondent does not contest the claimant’s claim for a protective award, and does not put forward any representations to the effect that the protected period should be less than 90 days.[3]On consideration of the file of proceedings, it is possible to issue judgment against the respondent under rule 21 of the Employment Tribunals Rules of Procedure 2013 in respect of the claim for a protective award, without a hearing.[4]The tribunal makes the following findings on the information provided, in respect of the claimant’s claim for a protective award for breaches of the collective consultation requirements under section 188 of the Act.[5]The respondent proposed to make 91 redundancies at its Olivers Yard site. The respondent did not fully inform and consult with the claimant in accordance with the provisions of section 188 of the Act 1992. There was no proper warning or consultation with the claimant and no employee representatives were elected or appointed for consultation as required under section 188A of the Act. In the circumstances, the respondent was in breach of the duty under section 188.[6]The first of the dismissals to which the claim relates took place on 15 April 2020. The claimant was dismissed by reason of redundancy on 15 April 2020. The claimant’s claim was presented in time on 11 May 2020 after Acas early conciliation which started on 1 May 2020 and ended on 4 May 2020.[7]The tribunal makes an award under section 189 in favour of the claimant for the maximum protected period of 90 days beginning with 15 April 2020.[8]The claimant has a claim for notice pay against the respondent. Notice of hearing in respect of that claim will be sent separately.[9]The Respondent is advised of the provisions of Regulation 6 of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 (‘the Regulations’).[10]Within 10 days of this decision being promulgated or as soon as is reasonably practicable, the respondent must comply with the provisions of Regulation 6 Page 2 of 3 of the 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.[11]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 respondent.[12]More information is contained in the annex to this judgment. In relation to the second claimant (Ms Marlow):[13]The second claimant’s claim is a duplicate of claim number 2203190/2020 in which judgment for a protective award was issued on 28 January 2022 and in which other claims are to be determined at a hearing to be listed. The tribunal has written separately to the second claimant about whether the duplicate claims should be struck out.[1]The claims for arrears of pay, holiday pay and notice pay succeed.[2]The respondent is ordered to pay the claimant the sum of £1,000 in respect of arrears of pay due to the claimant for the period 1 to 15 April 2020. This is the gross figure due, prior to any payment from the Redundancy Payments Service. Payment of the net sum less any payment by the Redundancy Payments Service may be made, provided tax and national insurance are properly accounted for.[3]The respondent is ordered to pay the claimant the sum of £190.48 in respect of pay for untaken holiday due to the claimant. This is the gross figure due, prior to any payment from the Redundancy Payments Service. Payment of the net sum less any payment by the Redundancy Payments Service may be made, provided tax and national insurance are properly accounted for.[4]The respondent is ordered to pay the claimant the sum of £2,000 by way of damages for breach of notice. This is the gross figure due, prior to any payment from the Redundancy Payments Service. Payment of the net sum less any payment by the Redundancy Payments Service may be made, provided tax and national insurance are properly accounted for.[1]The claimant was employed by the respondent, a national British fashion retailer which went into administration on 15 April 2020. The claimant brought an employment tribunal claim making claims for a protective award (for failure to consult), for arrears of pay, holiday pay and for notice pay. The claim was stayed pending consent from the administrators of the respondent.[2]In the ET3 and grounds of resistance presented on 27 September 2021, the administrators of the respondent granted consent for the claimant’s claim against the respondent to proceed. The respondent did not contest the Page 1 of 2 Case Number: 2202731/2020 claimant’s claim for a protective award; judgment for a protective award was issued dated 28 January 2022.[3]The claimant’s pay claims were considered at a hearing by video on 19 July 2022. The claimant did not attend and was not represented. The tribunal accepts the information provided in the claimant’s claim form (ET1) that she was not paid for the period from 1 to 15 April 2020, that she was entitled to 4 weeks’ notice and that she was not given notice or pay in lieu of notice. The amounts owing are £1,000 in arrears of pay and £2,000 in notice pay. This is the gross figure due, prior to any payment from the Redundancy Payments Service. Payment of the net sum less any payment made by the Redundancy Payments Service may be made, provided tax and national insurance are properly accounted for.[4]The tribunal accepts the information provided in the claimant’s claim form that she is entitled to £190.48 in respect of 2 days pay for holiday accrued but untaken at the termination date.