Mr A Bates and others v Aspen Phoenix Newco Ltd T/a Paperchase (in administration) and others: 2209915/2023 and others
JUDGMENT
[1]The default judgment of the Tribunal is that the 1st Respondent failed to comply with its duties pursuant to Section 188 of the Trade Union Labour Relations (Consolidation) Act 1992 (TULCRA), and that each of the Claimants is entitled to a protective award of 90 days’ gross pay.REASONS
[2]The claims against the 1st work you Respondent, to include various associated group companies, had been listed as a single multiple. I have been assigned responsibility for the multiple. It is understood that there are 21 Claimants. For ease of reference an appendix is attached to this Judgment setting out the individual claimants. 1 of 4 Relevant background[3]On 31 January 2023 the Claimants received emails giving notice of termination of their employment with immediate effect. The Claimants were dismissed without notice and without any warning or consultation. There was no recognised trade union for the purposes of collective consultation.[4]On 31 January 2023, the 1st Respondent was placed into administration. The administrators are Begbies Traynor (the Administrators).[5]The Claimants contend that the Respondent failed to comply with its duties pursuant to s.188 of TULCRA in that it:(a) Failed to give affected employees the opportunity to elect representatives;(b) Failed to provide the required information under s.188(4);(c) Failed to inform or consult with appropriate representatives of the affected employees;(d) Failed to provide information about the proposed redundancies in writing prior to their dismissal on the grounds of redundancy;(e) Failed to consult with the Claimants on ways of avoiding the dismissals and/or reducing the number of employees to be dismissed.[6]The tribunal understands that the 21 claimants were all employed at the 1st respondent’s head office at Pear Tree Court, London EC1R 0TS. There were therefore 20 or more redundancies at a single establishment giving rise to an entitlement to protective awards in accordance with S 188 (1) of TULCRA.[7]No response was served by the Administrators but in a letter dated 22 May 2023 they provided their consent for the tribunal claims to proceed. 2 of 4[8]The Secretary of State served a response as an interested party in the role of statutory guarantor, and neither supports nor resists the claims for protective awards.[9]The Secretary of State stated that it did not object in principle to the Tribunal deciding the issue of protective awards on the papers without a formal hearing.[10]The Secretary of State requested that the Tribunal confines its judgment to the description of employees covered by the protective award and does not attempt to quantify the award that may be payable from the National Insurance Fund.The Law
[11]Under S188 of TULRCA, an employer is required to consult “appropriate representatives” of employees who may be affected by dismissals, or measures taken in connection with them. If there is no recognised trade union, the employer is obliged to consult either an existing body of employee representatives who had been appointed or elected for other consultation purposes, but who have authority to be consulted about the proposed dismissals, or representatives who have been elected specifically for the purpose of the redundancy consultation.[12]Under s.189 of TULRCA a claim for a protective award may only be brought by the employee representatives, where there are any. An employee may bring the claim on his or her own behalf only if there is no recognised trade union or elected employee representatives, or the claim relates to the employer’s failure to arrange the election of employee representatives. The Tribunal is satisfied that this exception applies given that there was no recognised trade union or employee representative body.[13]S.188 of TULRCA requires that where an employer proposes to dismiss as redundant 20 or more employees at a single establishment within a period of 90 days or less that there should be a period of collective consultation with appropriate employee representatives. 3 of 4 Conclusion and judgment[14]All of the Claimants were dismissed without any consultation with appropriate employee representatives and with a failure to provide information about the proposed redundancies in writing prior to their dismissal on the grounds of redundancy.[15]The Tribunal issues a declaration that the Respondent has failed to comply with its obligations under s.188 of TULCRA.[16]The Tribunal considers that a protective period of 90 days from the date of individual dismissals which took place on 31 January 2023 should apply.[17]I do not consider that any basis has been put forward pursuant to which it would be appropriate to reduce the protective awards from the 90 day period and therefore all of the Claimants are entitled to 90 days’ gross pay. As requested by the Secretary of State their individual entitlements will be calculated by the National Insurance Fund, and to the extent to which their full entitlements are not recovered from the National Insurance Fund, their claims will rank as unsecured claims in the administration of the Respondent.