M Fountain and Others v LDO Realisations Ltd (in Administration) formerly known as Octagon Developments Ltd (in Administration): 2300884/2025 and Others

EMPLOYMENT TRIBUNALS

Case No 2300884/2025

Between

Martin Fountain and others (as identified in Annexes A and B)Claimant

LDO Realisations Ltd (in Administration) formerly known as Octagon Developments Ltd (in Administration)Respondent

Before

Employment Judge Shergill

Mr Hallstrom (instructed by counsel) for claimant

Date 3 July 2026

JUDGMENT

The judgment of the tribunal is that:- i) The first respondent has failed to comply with requirements of section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992. The claim for a protective award for a period from 19/12/24 succeeds, subject to the clarification about Annex B claimants. The Recoupment Regulations apply. ii) The Tribunal makes a protective award in respect of the claimants listed in Annex A. iii) The Tribunal makes a protective award in respect of the claimants in Annex B in principle subject to the evidential issue set out below.

REASONS

[1]This is a multiple claim brought by 33 individual claimants. They were formerly employed by the first respondent, previously known as Octagon Developments Limited (in Administration). The first respondent subsequently changed its name at Companies House to LDO Realisations Limited (in Administration) on 24 December 2024. 1 of 7

[2]The claims arise from redundancies which took effect on or shortly after 19 December 2024. The claimants contend that the first respondent failed to comply with its duties of collective consultation before dismissing them as redundant.

[3]The first respondent is insolvent. It did not submit an ET3 and has played no part in these proceedings. The administrators’ consent to a protective award being made was given so as to comply with the relevant Insolvency Act provisions.

[4]The second respondent, the Secretary of State for Business and Trade, filed an ET3. The Secretary of State is not the former employer and was not involved in the events preceding dismissal. The Secretary of State neither supports nor resists the claims. The second respondent’s submissions were made to assist the tribunal because of the Secretary of State’s statutory role in relation to payments from the National Insurance Fund.

[5]I accept that the second respondent’s grounds of resistance accurately identify the legal issues to be considered, including the need to identify the employees covered by any protective award and the protected period.

[6]The case was dealt with at a single hearing. Ordinarily, a protective award claim may involve two stages: first, the making of a protective award under section 189 TULRCA; and secondly, an application under section 192 TULRCA if remuneration due under the award is not paid. In this case, those matters were addressed together because the first respondent is insolvent and is unlikely to be in a position to pay remuneration under any protective award.

[7]It would be disproportionate and contrary to the overriding objective to make a protective award and then require the claimants to bring a further application to the tribunal for remuneration due under that award in the circumstances.

[8]Section 188 TULRCA provides that 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 must consult appropriate representatives of the affected employees.

[9]In Radin

[2004] ICR 893

, the Court of Appeal set out the exercise of the tribunal’s discretion under section 189 TULRCA. The tribunal has a wide discretion to do what it considers just and equitable, but the focus is on the seriousness of the employer’s default. Where there has been no consultation, the proper approach is to start with the maximum protective period of 90 days and reduce it only if there are mitigating circumstances justifying a reduction.

[10]The Secretary of State has no authority to make payments in respect of a protective award unless the tribunal has made a judgment confirming that such an award has been made against the employer. The tribunal’s role is not to quantify the amount payable from the National Insurance Fund. Where an employer is insolvent, the Insolvency Service may pay a protective award, but the amount recoverable is limited to eight weeks’ pay and subject to the applicable statutory cap. 2 of 7

Findings of fact

[1]Two categories: The claimants were formerly employed by the first respondent. I have treated the claimants as falling into two categories. The first category comprises those identified in Annex A. The tribunal has satisfactory case-specific material showing that those claimants were likely employed by the first respondent on 19 December 2024 and were dismissed as redundant on or shortly after that date. I distinguish between the claimants in Annex A and B because those in Annex B have not provided such satisfactory evidence. I sought clarification from the solicitors involved who stated that ‘we have collated the evidence we were able to gather from the entirety of the Claimants. Unfortunately, some of the Claimants were not forthcoming with their documents, but we have included the documents we were able to gather.’ I had considered dismissing the Annex B claims but considered that was disproportionate.

[2]Mr Martin Fountain attended the hearing. I do not accept that Mr Fountain acted as an appropriate representative on behalf of all claimants within the meaning of the statutory provisions. His attendance before the tribunal was as a result of the employment tribunal rules and case management arrangements permitting one claimant to act, in practical terms, as the lead claimant in ‘multiples’ claims arising from the same events.

[3]That is a wholly different set of circumstances from a claim brought by a trade union representative or elected employee representative under the statutory collective consultation regime. These proceedings are individual claims. The claimants are not acting through a representative bringing a claim on behalf of a wider class of employees. Each individual claimant was required to demonstrate that they met the relevant criteria.

[4]I indicated to counsel that this was not a controversial proposition. I did not accept the submission that the tribunal was required only to name a broad class of persons. The suggested wording proposed on behalf of the claimants would have been broad enough to cover the entirety of approximately 70 people working for the first respondent. I was not satisfied that such an approach was appropriate.

[5]This is because Mr Fountain was not acting as a statutory representative for a class of persons. The claims were brought individually and were joined as a multiple case for the purposes of tribunal administration. I am therefore dealing with the 33 claims which are before the tribunal; and in two classes as per the annex. The claimants are not before the tribunal through a statutory representative. The administrative treatment of Mr Fountain as a lead claimant in a multiple claim does not convert him into an appropriate representative for the purposes of sections 188 and 189 TULRCA.

[6]General matters: Mr Fountain was treated administratively as the lead claimant in this multiple claim. He produced a witness statement, which was accepted as read. There was no substantive challenge to the claim by the first respondent and no case-specific challenge by the second respondent. I accepted his evidence. 3 of 7

[7]I am satisfied all the claimants were assigned to one establishment. At least 20 employees were proposed to be dismissed as redundant at that establishment within a period of 90 days or less. The affected employees were told, either at the head office site or by Microsoft Teams, for the first time on 19 December 2024 that they were being made redundant.

[8]There was no recognised trade union for collective bargaining purposes in respect of the affected employees. The first respondent did not make arrangements for the election of employee representatives under section 188A TULRCA. No appropriate representatives were elected.

[9]At no time before the first dismissals took effect did the first respondent consult in accordance with section 188(2) TULRCA or otherwise. The evidence indicates that the first respondent’s business had been experiencing losses over a prolonged period and a continuing downturn. This was not a sudden disaster preventing compliance with the statutory duty. The first respondent was aware that the business was in a dangerous financial predicament. No collective consultation took place. No individual redundancy consultation took place.

[10]There was no evidence before the tribunal that any special circumstances rendered it not reasonably practicable for the first respondent to comply with its duty to consult. No explanation has been offered by the first respondent for the failure to consult. The failure to consult was wholesale. The first respondent did not take any meaningful step towards compliance with its consultation obligations.

[11]On 19 December 2024, the first respondent dismissed employees as redundant with immediate effect. In those circumstances, the complaints under section 189 TULRCA are well founded. I am satisfied that the appropriate protected period is 90 days beginning on 19 December 2024. There are no mitigating factors which justify a reduction from the maximum period.

[12]The Annex A claimants have provided satisfactory evidence that they were employed by the first respondent on 19 December 2024 and were dismissed as redundant on or shortly after that date. The protective award is made in their favour without any further evidential qualification, although this does not displace any lawful requirements imposed by either the first or second respondent when exercising their powers or statutory functions.

[13]The second category: this comprises those identified in Annex B. Those claimants have brought claims, and the factual matrix set out above is sufficient for them to qualify in principle. However, the tribunal was not provided with satisfactory case-specific evidence to establish that each of them was employed by the first respondent on 19 December 2024 and dismissed as redundant on or shortly after that date. I therefore distinguish between the claimants in Annex A and Annex B for transparency. It reflects the unusual position that a number of individual claimants have not produced case-specific evidence, even though each individual claimant is required to establish eligibility. 4 of 7

[14]I was taken to other material in the bundle which may be capable of supporting those matters. However, I am not prepared to make judicial findings beyond the evidence which I consider to be satisfactorily established. The Annex B claimants fall within the relevant category in principle, but they must demonstrate eligibility by producing satisfactory evidence or by reliance on a concession or confirmation from either the first or second respondent.

Conclusion

[15]For those reasons, the tribunal grants a declaration that the first respondent failed to comply with its collective consultation obligations under section 188 TULRCA.

[16]The tribunal makes a protective award for a protected period of 90 days beginning on 19 December 2024, subject to the distinction of Annex A and B claimants.

[17]The award is made in favour of the Annex A claimants without the further evidential qualification identified above.

[18]The award is made in favour of the Annex B claimants subject to satisfactory evidence being provided, or the matter being conceded, that they were employed by the first respondent on 19 December 2024 and were dismissed as redundant on or shortly after that date. Employment Judge Shergill Date: 3 July 2026 Date: 7 July 2026 5 of 7 ANNEX A Claimants in respect of whom satisfactory case-specific evidence was before the tribunal: Berry, Michael, 2301708/2025 Blake, Anna, 2301683/2025 Fountain, Martin, 2301679/2025 Cuffe, John, 2301690/2025 Geraghty, Katie, 2301707/2025 Gladden, Paul, 2301697/2025 Jepson, Jacqueline, 2301682/2025 Knipe, Craig, 2301688/2025 McLoughlin, Mark, 2301695/2025 Osmond, Christopher, 2301684/2025 Price, Annette, 2301698/2025 Proudfoot, Della, 2301701/2025 Simms-Cato, Colin, 2301706/2025 Stuller, Roman, 2301691/2025 Warne, Derek, 2301686/2025 6 of 7 ANNEX B Claimants whose claims qualify in principle, but who must provide satisfactory evidence, or rely on a concession, that they were employed by the first respondent on 19 December 2024 and were dismissed as redundant on or shortly after that date: Cook, Nicholas, 2301680/2025 Evans, Samuel, 2301705/2025 Frost, Daniel, 2301711/2025 Guyett, Tony, 2301703/2025 Jones, Lewis, 2301687/2025 Loosemore, Christopher, 2301693/2025 Mandeville, Wayne, 2301696/2025 McCallum, Charlie, 2301681/2025 McQuhae, Angus, 2301685/2025 Monem, Adham, 2301700/2025 Nolan, Lewis, 2301694/2025 O'Reilly, Nicola, 2301704/2025 Osman, Galad, 2301702/2025 Page, Richard, 2301689/2025 Parkin, Oliver, 2301699/2025 Raine, Alan, 2301710/2025 Tuitt, Alric, 2301692/2025 Williams, Emily, 2301709/2025 7 of 7