Mr E Fernandez Breis v Weaveworks Ltd (in creditors’ voluntary liquidation): 2301986/2024

EMPLOYMENT TRIBUNALS

Case No 2301986/2024

Between

Mr E Fernandez BreisClaimant

Weaveworks Ltd (in creditors’ voluntary liquidation) Also sent to: The Secretary of State for Business & Trade (as statutory guarantor)Respondent

Before

Employment Judge Ramsden

Date 20 December 2024

JUDGMENT

[1]The Claimant’s employment with the Respondent terminated on 31 December 2023, and he was paid for work done up to that date. The Claimant is not entitled to any payment of wages after that date, and so his complaint of unauthorised deductions from his wages in respect of January 2024 is not well-founded and is dismissed.

[2]The Claimant was wrongfully dismissed, without notice or payment in lieu of notice. The Claimant was entitled to one month’s notice under the terms of his contract of employment. He was entitled to be paid £11,666.67 gross by way of damages for wrongful dismissal, but the Secretary of State has paid £643.00 gross of that amount. The balance of £11,023.67 gross is a sum owed to the Claimant by the Respondent.

[3]At the time his employment terminated the Claimant had accrued but not taken four days of annual leave. He was entitled to be paid £539 gross per day in 1 of 4 respect of that, so the aggregate total of his entitlement was £2,156 gross. He has been paid £459.29 by the Secretary of State, and so the balance he is owed by the Respondent is £1,696.71 gross.

[4]The Claimant made a claim for unauthorised deductions from his wages and/or breach of contract in respect of unpaid pension contributions, but those have since been paid, and that complaint is dismissed upon its withdrawal by him.

[5]The Respondent failed to comply with a requirement of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 to consult in respect of the collective redundancies made by it on 31 December 2023 of 71 people at a single establishment. Those 71 people were given three days’ notice that the company was going into creditors’ voluntary redundancy and would be shut down. a) The Respondent did not recognise any trade union, and nor were there any employee representatives, and so the Claimant is entitled to pursue this complaint pursuant to section 189 of that Act. b) A protective award may be made for up to 90 days’ pay. Such an award is punitive, and where there has been no consultation should start from the assumption that the maximum amount should be awarded, with reductions being made to reflect the extent of any consultation carried out, and any other mitigating circumstances justifying a reduction (Susie Radin Ltd v GMB and others

[2004] ICR 893

). c) In this case, the Tribunal finds that:(i) The Respondent had kept all employees informed of the expectation that it would be acquired by a third party, and that there were risks to its viability if that acquisition did not proceed.

(ii) However, the Respondent also told some employees, and that number included the Claimant, that a different group of employees were being made redundant so as to ensure that the Respondent remained a viable business should the acquisition not go ahead.

(iii) When the acquisition did not proceed, the Respondent’s Chief Executive Officer informed its employees on 29 December 2023 that the company had been informed by its investors that their forbearance was exhausted and it would be wound down, and noted that the employees would have questions, i.e., inviting some dialogue about what had happened. This was minimal consultation, but it was some. d) In light of the factual findings above, the Tribunal notes that: (i) There was some partial compliance by the Respondent with the obligation to consult, both in relation to the prior redundancy exercise and the supposedly “saving” acquisition; and 2 of 4 (ii) There was a lack of “deliberateness” (as it was put in the analogous case of Amicus v GMB Tooling Ltd (in administration)

[2005] IRLR 638

) in the failure to carry out the required consultation. Whilst the acquisition not proceeding was a possibility, it was not considered likely, and the Respondent had understood that the cost-cutting measures it had undertaken (including the prior redundancy exercise) would protect the Respondent from closure – but ultimately its investors took a different view. e) Consequently, in those circumstances the Tribunal considers it just and equitable to make a protective award, payable by the Respondent, of 50 days’ pay. f) For the avoidance of doubt, the award contained in this Judgment relates only to the Claimant.

[6]The Employment Protection (Recoupment of Benefits) Regulations 1996 (the Recoupment Regulations) apply to this protective award (but not to the award of damages for wrongful dismissal or the compensation in respect of accrued but untaken holiday). The protected period was for 50 days, and began on 29 December 2023 and ended on 16 February 2024.

[7]The Respondent should note that: a) It has duties under Regulation 6 of the Recoupment Regulations to provide certain information to the Secretary of State; and b) Pursuant to Regulation 7 of the Recoupment Regulations, payment of the protective award shall be treated as stayed until the Secretary of State has either:(i) Served a recoupment notice on the Respondent; or

(ii) Notified the Respondent in writing that they do not intend to serve a recoupment notice, as described in Regulation 8 of the Recoupment Regulations.