J Powell and Others v A Gomez Ltd (In administration) and The Secretary of State for Business, Trade and Industrial Strategy: 2302258/2024 and Others J Powell and Others v A Gomez Ltd (In administration) and The Secretary of State for Business, Trade and Industrial Strategy: 2302258/2024 and Others

EMPLOYMENT TRIBUNALS

Case No 2302258/2024

Between

Jason Powell and othersClaimant

A Gomez Limited (in administration) [R1] The Secretary of State for Business, Trade and Industrial Strategy [R2]Respondent

Before

Judge M Aspinall

Date 30 April 2025

JUDGMENT

The Claimants' application to amend their claims is refused. All claims are struck out under Rule 38(1)(a) of the Employment Tribunal Rules of Procedure 2024 as having no reasonable prospect of success on the basis that employee representatives were properly elected in accordance with section 188A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”), and therefore individual employees cannot bring claims under section 189 TULRCA for inadequate consultation where such representatives exist.

REASONS

[1]This case concerns a collective redundancy dispute between 314 former employees of A Gomez Limited and their former employer. A Gomez Limited, the First Respondent, was a fresh produce supplier providing a wide range of products. The company operated from premises at Coldharbour Lane in Canterbury, Kent. The Second Respondent is the Secretary of State for Business and Trade, joined to these proceedings as the statutory guarantor under Part XII of the Employment Rights Act 1996.

[2]A Gomez Limited had experienced a continued downturn in revenue over several years due to a combination of factors including smaller margins, the impact of Brexit, and rising costs of living in the UK making the company less competitive compared to those in other countries. Despite significant financial support from its Spanish parent company, Grupo Hortofructicola Paloma SA ("Paloma"), the First Respondent was unable to find viable options to continue operations.

[3]On 2 November 2023, the First Respondent announced to its workforce that it would be winding down operations, closing the business and ceasing trading. The First Respondent stated that it would begin a collective consultation process in accordance with section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA"). As there was no recognised trade union within the business, the First Respondent initiated a process to elect employee representatives.

[4]Between 3 November and 13 November 2023, the First Respondent conducted an election process for employee representatives. This included sending communications to employees about nominations, collecting nominations, conducting ballots where necessary, and announcing the results. Following this process, 14 employee representatives were elected from across different areas of the business, including individuals from both Shift A and Shift B.

[5]The First Respondent provided the elected representatives with information required under section 188(4) TULRCA on 15 November 2023, the same day the HR1 form was submitted to the Insolvency Service. Consultation meetings with these representatives took place on 16 and 20 November 2023 (for different shifts) and again on 24 and 27 November 2023. A third round of meetings scheduled for 1 and 5 December 2023 was postponed but never rescheduled.

[6]On 11 December 2023, the First Respondent entered administration, and all employees were made redundant with immediate effect, prior to the completion of the full consultation period that had been planned. Glen Carter and Terence Guy Jackson of RSM UK Restructuring Advisory LLP were appointed as joint administrators. Shortly after this, all employees were provided with information on how to claim outstanding redundancy pay, notice pay and holiday pay from the Insolvency Service.

[7]On 20 May 2024, 314 individual Claimants submitted ET1 claim forms to the Employment Tribunal, alleging that the First Respondent had failed to comply with its collective consultation obligations. The claims were brought by individuals rather than through employee representatives, and all contained identical wording asserting that "no opportunity was given by the Respondents to elect employee representatives."

[8]The First Respondent's ET3 response, filed in July 2024, specifically contested this assertion and provided details of the election process that had taken place in November 2023. Despite this challenge to the foundational premise of their claims, the Claimants maintained their position that no election had occurred. This position was sustained through the submission of 304 similarly worded witness statements in January 2025, all reiterating the claim that no opportunity had been given to elect representatives.

[9]On 29 January 2025, Employment Judge Fitzgerald held a case management preliminary hearing where the jurisdictional issue regarding the election of representatives was explicitly raised. Following this, the First Respondent's solicitors sent a costs warning letter dated 26 February 2025, which highlighted what they described as fundamental flaws in the Claimants' case and provided "in relatively clear detail, fact of the election." Judge Fitzgerald ordered a preliminary hearing to be held on 30 April 2025 specifically to address the jurisdictional question of whether the Tribunal had jurisdiction to hear claims brought by individual Claimants under section 189 TULRCA if employee representatives had been elected.

[10]The Claimants were represented throughout these proceedings by CFS Redundancy Payments, a professional claims management service specialising in redundancy claims. The First Respondent, through its administrators, engaged legal representation to defend the claims, while the Second Respondent took no active part in the proceedings.

[11]The central factual dispute in this case was whether the First Respondent conducted an election process for employee representatives as described in paragraphs 3-5 above. The Claimants initially maintained no such election occurred, while the First Respondent contended it had fully complied with its obligations under section 188A TULRCA. This dispute was ultimately resolved by the Claimants' concession during the hearing that the election had taken place. The purpose of the hearing

[12]The preliminary hearing was originally convened following the case management orders made by Employment Judge Fitzgerald on 29 January 2025. As set out in those orders, the hearing was intended to determine whether employee representatives had been properly elected, and if so, whether the Tribunal had jurisdiction to hear claims brought by individual Claimants under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). Mr J Powell & others -v- A Gomez Limited (in administration) [R1] & The Secretary of State for Business and Trade [R2] [URN Page 2 of 12

[13]Employment Judge Fitzgerald had identified this as "a very important issue" because "if employee representatives were in place then the Tribunal may not have jurisdiction to hear the claim brought by individual Claimants under section 189 TULRCA." The hearing was to focus on this jurisdictional question, with the possibility that the claims might be struck out under Rule 38(1)(a) of the Employment Tribunal Rules of Procedure 2024 on the basis that they had no reasonable prospect of success.

[14]However, the purpose of the hearing was necessarily altered by the Claimants' last-minute application to amend their claims, submitted at 4:36pm on 29 April 2025, the day before the scheduled hearing. This application sought to fundamentally alter the basis of the claims from allegations that "no opportunity was given by the Respondents to elect employee representatives" to an acknowledgment that representatives were elected, but the subsequent consultation was inadequate. It also sought to change the claims from being brought by 314 individual Claimants to being brought by the 14 elected representatives.

[15]Given the timing and nature of this application, both parties and the Tribunal agreed that it was in the interests of justice to first consider whether this amendment should be permitted before proceeding to the original purpose of determining the jurisdictional issue. This approach was necessary because if the amendment were allowed, it would fundamentally change the nature of the claims and potentially render the jurisdictional challenge moot by substituting claims brought by the appropriate representatives rather than individuals.

[16]The hearing would therefore first consider whether to permit the proposed amendment, applying the principles established in Selkent Bus Co Ltd v Moore

[1996] ICR 836

. This required evaluation of the nature of the amendment, its timing, the hardship to the parties if granted or refused, and whether the Claimants had provided a "full honest and acceptable explanation" for the delay as required by Khudados v Leggate [2004]. If the amendment application were to be refused, the hearing would then determine whether the First Respondent had complied with its obligations under section 188A TULRCA to conduct a proper election of employee representatives, and if so, whether this meant that only those representatives could bring claims under section 189(1)(b) TULRCA.

[17]The hearing thus had a dual potential purpose: first to determine whether to allow the amendment application, and second (if that application were refused) to determine whether the Tribunal had jurisdiction to hear the claims as originally pleaded. The outcome of these determinations would fundamentally affect whether the claims could proceed to a full hearing on their merits or whether they should be dismissed at this preliminary stage. The hearing before the Tribunal

[18]The preliminary hearing was conducted by video conference with Employment Judge Aspinall sitting alone. The Claimants were represented by Mr Paul OCallghan of Counsel, instructed by CFS Redundancy Payments. The First Respondent was represented by Mr Thomas Fuller, CILEx Lawyer. Charlotte Fallin, a paralegal from the First Respondent's legal team, also attended as an observer. The Second Respondent did not send a representative, which the Tribunal noted was not unusual in cases of this nature.

[19]After introductions and confirmation that all parties could see and hear the proceedings, the Tribunal identified that Mr Jason Powell was the lead Claimant among the 314 individual Claimants, though Mr Powell was not in attendance. The Tribunal confirmed receipt of the bundle of documents but noted that it required time to review the case papers thoroughly, particularly the case management orders made by Employment Judge Fitzgerald.

[20]During this initial housekeeping, Mr Fuller alerted the Tribunal to two matters: first, that he had submitted a skeleton argument which may not have reached the Tribunal, and second, that the Claimants had made a late application to amend their claims. This application had been submitted at 4:36pm the day before the hearing and had not been copied to the First Respondent's Mr J Powell & others -v- A Gomez Limited (in administration) [R1] & The Secretary of State for Business and Trade [R2] [URN Page 3 of 12 representatives until later that evening. The Tribunal confirmed it had received the amendment application but not the skeleton argument, which was subsequently forwarded.

[21]The Tribunal adjourned briefly to review the documents, including the application to amend. Upon reconvening, the Tribunal first established that the First Respondent opposed the amendment application and invited Mr OCallghan to explain the basis for the Claimants' application.

[22]Mr OCallghan outlined that the application sought to amend the claims to acknowledge that an election of employee representatives had occurred - contrary to the Claimants' original position - but to argue instead that the subsequent consultation process was inadequate. He explained that the application also sought to substitute the 314 individual Claimants with the 14 individuals who had been elected as employee representatives.

[23]In support of the application, Mr OCallghan cited several factors: coordination difficulties with such a large claimant group, language barriers affecting many Claimants, and gradual clarification of the factual position through disclosure. He argued that the representatives had agreed to stand for election on a misunderstanding of the consultation process and "would never have agreed to stand had they been made aware of the process." When questioned about the timing of the application, Mr OCallghan explained it had been prompted by "further review of the first respondent skeleton argument" received the previous week, though he conceded the application "potentially could have been made at an earlier date."

[24]When the Tribunal expressed concern that several Claimants who had signed witness statements denying any election had occurred were themselves elected representatives, Mr OCallghan suggested this represented a misunderstanding rather than dishonesty, arguing that "these witnesses did not understand the process in terms of what they were actually signing up to."

[25]Mr Fuller, responding for the First Respondent, strongly opposed the application. He methodically traced the procedural history of the case, highlighting that the Claimants had been put on notice about the election issue through the ET3 response, the January 2025 preliminary hearing, and the costs warning letter sent on 26 February 2025, which set out "in relatively clear detail, fact of the election."

[26]Mr Fuller characterized the amendment application as an attempt to "get around the jurisdiction point" that the First Respondent had raised consistently since filing its response. He argued that the Claimants had "lied in their claim form" and "lied about there being no election of employee representatives," only conceding the point after their position became untenable in light of the documentary evidence.

[27]Addressing the Claimants' explanations, Mr Fuller questioned why, if language barriers were an issue, the representatives had not taken instructions from English-speaking Claimants. He emphasized that CFS Redundancy Payments specialized in these types of claims and should have been aware of the jurisdictional implications. He noted that the First Respondent had incurred "significant timing cost in defending a position which was hopeless from the outset" and argued it would face "further significant prejudice" if the amendment were allowed.

[28]The Tribunal sought clarification from Mr OCallghan as to whether the Claimants now conceded that the election process satisfied the requirements of section 188A of TULRCA, which he confirmed was the case. The Tribunal also established that the original 304 witness statements submitted before the January hearing were formal witness statements signed with statements of truth, and that the new witness statements from the elected representatives had been served on the First Respondent by the 4 April deadline set in Judge Fitzgerald's directions.

[29]No witnesses were called to give oral evidence, as the Tribunal determined that the written statements were sufficiently clear regarding the concession that an election had taken place. After hearing all submissions, the Tribunal adjourned to consider its decision on the amendment Mr J Powell & others -v- A Gomez Limited (in administration) [R1] & The Secretary of State for Business and Trade [R2] [URN Page 4 of 12 application. The law Legislation

[30]Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRCA") establishes the core obligation for employers to consult with appropriate representatives of affected employees in collective redundancy situations. Section 188(1) states: "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."

[31]The consultation must begin "in good time" and, in cases where 100 or more employees are to be made redundant within a 90-day period, at least 45 days before the first dismissal takes effect. The consultation requirements are further detailed in section 188(2), which requires the consultation to include discussions about "ways of avoiding the dismissals", "reducing the numbers of employees to be dismissed", and "mitigating the consequences of the dismissals".

[32]Section 188(4) specifies that the employer must disclose certain information in writing to the appropriate representatives, including: "(a) the reasons for the proposed dismissals, (b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant, (c) the total number of employees of any such description employed by the employer at the establishment in question, (d) the proposed method of selecting the employees who may be dismissed, (e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect, (f) the proposed method of calculating the amount of any redundancy payments to be made."

[33]Section 188A defines the election process where there is no recognised trade union or existing employee representative body. Section 188A(1) states: "This section applies where there is no recognised independent trade union in respect of the employees in question, and either there are no existing appropriate representatives who could be consulted under section 188 or the employer decides to invite employees to elect representatives for this purpose." The employer must make arrangements ensuring the election is fair, that the candidates are affected employees, and that no employee is unreasonably excluded from standing or voting.

[34]Section 189 creates the enforcement mechanism for these consultation requirements. Section 189(1) states that where an employer has failed to comply with a requirement of section 188, "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 any other case, by any of the affected employees or by any of the appropriate representatives."

[35]Section 189(2) provides that if a complaint under section 189(1) is upheld, the tribunal shall make a declaration to that effect and may make a protective award. This award requires the employer to pay remuneration for a protected period to affected employees. The maximum protected period is 90 days, though the tribunal has discretion to specify a shorter period based on what it considers just and equitable.

[36]Section 189(6) specifically addresses who may bring complaints about inadequate consultation: "A complaint under this section may not be presented(a) before the relevant date, or

(b) later than three months after the relevant date; but the employment tribunal has discretion to allow presentation out of time where it is satisfied that it was not reasonably practicable for the complaint to be presented within the normal time limit."

[37]Rule 29 of the Employment Tribunal Rules of Procedure 2024 governs applications to amend claims, providing that "the Tribunal may at any time, either on its own initiative or on the application Mr J Powell & others -v- A Gomez Limited (in administration) [R1] & The Secretary of State for Business and Trade [R2] [URN Page 5 of 12 of a party, make an order amending any description of a person who is a party to proceedings, adding a person to the proceedings as a claimant or respondent, or substituting a party." The tribunal retains broad discretion in determining whether to allow such amendments, guided by the overriding objective in Rule 2 to deal with cases fairly and justly.

[38]Rule 38(1) provides for striking out claims in certain circumstances, particularly 38(1)(a) which allows the tribunal to strike out a claim where it has "no reasonable prospect of success". Rule 76 allows the tribunal to make costs orders, including when a party has "acted vexatiously, abusively, disruptively, or otherwise unreasonably in bringing proceedings or conducting proceedings". Case law

[39]The principles governing applications to amend claims in employment tribunal proceedings are established in Selkent Bus Co Ltd v Moore

[1996] ICR 836

. The Employment Appeal Tribunal distinguished between minor amendments (such as correcting errors or adding details to existing allegations) and substantial alterations that change the basis of the existing claim. Selkent emphasises that timing is a key factor; whilst delay alone should not justify refusal, an application made close to a hearing date requires explanation, particularly when the new facts alleged were within the applicant's knowledge earlier. The overarching principle is that tribunals should "balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it."

[40]Khudados v Leggate

[2005] IRLR 540

further developed these principles, establishing that late amendment applications require "a full honest and acceptable explanation" for the delay. The EAT observed that amendments raising entirely new grounds or requiring consideration of complex facts are more likely to be refused than minor amendments that merely "flesh out existing grounds." Importantly, Khudados rejected the notion that amendments with merit should always be allowed, noting that justice "includes fairness to all sides and to the interests of the public in the efficient administration of Courts and Tribunals."

[41]The approach to claims founded on untrue statements was addressed in Arrowsmith v Nottingham Trent University

[2011] EWCA Civ 797

, where the Court of Appeal considered when such statements amount to "unreasonable conduct" justifying costs orders. The Court endorsed the principle from Daleside Nursing Home v Mathew that when false statements are central to a claim, this can constitute unreasonable conduct, particularly when "the lie was explicit and so much at the heart of the case." However, Arrowsmith also emphasised that each case must be evaluated on its specific facts.

[42]Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ 330

established that claims should rarely be struck out when central facts are disputed, stating: "It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute." Such exceptional circumstances might exist where "the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation." The Court clarified that "no reasonable prospect of success" means "whether an application has a realistic as opposed to a merely fanciful prospect of success."

[43]In Gillett v Bridge 86 Ltd

UKEAT/0051/17/DM

, the Employment Appeal Tribunal addressed the specific jurisdictional question of whether individual employees can bring claims under section 189 TULRCA when employee representatives have been elected. The EAT held that "In an alleged collective consultation failure case, where representatives have been, or could be, or should have been, elected; it is, in our view, consistent with the Directive, and with the statutory provisions, that those representatives, and those representatives alone, can bring a claim. It follows that individuals cannot bring claims in those circumstances." The evidence Mr J Powell & others -v- A Gomez Limited (in administration) [R1] & The Secretary of State for Business and Trade [R2] [URN Page 6 of 12

The evidence

[44]The Tribunal has considered only the evidence to which its attention was specifically drawn during the hearing. This includes documents referenced in pleadings, submissions, and witness statements, but not every document contained within the 286-page hearing bundle. The findings of fact are based solely on this evidence and the submissions made by the parties.

[45]The ET1 claim forms submitted by the Claimants contained identical wording asserting that "no opportunity was given by the Respondents to elect employee representatives…". This formed the foundational premise of their claims. The Claimants sought protective awards under section 189 of TULRCA based on this alleged failure.

[46]The First Respondent's response filed on 17 June 2024 contested this assertion and outlined a chronology of the election process that had occurred in November 2023. The response described a sequence beginning with the business announcement on 2 November 2023, followed by communications requesting nominations by 8 November, a voting process concluding by 13 November, and the announcement of elected representatives that same day. The response further detailed consultation meetings held on 16, 20, 24 and 27 November 2023, noting that planned meetings for 1 and 5 December were postponed and ultimately never held due to the company entering administration on 11 December 2023.

[47]The Second Respondent's response, dated 4 June 2024, took a neutral position on the claims, stating they "neither supports nor resists the claims" as the Secretary of State was joined only as a statutory guarantor. This response highlighted relevant legal points including the principle that a claim for a Protective Award may only be brought by appropriate representatives where they exist, and that individual employees may only bring claims in limited circumstances.

[48]In January 2025, 304 witness statements were submitted by the Claimants, all containing identical wording at paragraph 6 stating: "I was not part of a trade union and no opportunity was given by the respondents to elect employee representatives for those made redundant." These statements were signed with statements of truth by each individual Claimant. Notably, this assertion was maintained even in statements from individuals who were later identified as having been among the elected representatives, including Adriana Robinescu and several others.

[49]On 29 January 2025, Employment Judge Fitzgerald conducted a case management preliminary hearing at which the jurisdictional issue regarding the election of representatives was explicitly identified as "a very important issue" that required determination before the claims could proceed. The case management orders from this hearing directed a preliminary hearing to address this specific jurisdictional question.

[50]The Tribunal was referred to a costs warning letter dated 26 February 2025 sent by the First Respondent's solicitors to the Claimants' representatives. This letter detailed "in relatively clear detail, fact of the election" and warned the Claimants that continuing to maintain their position could have cost consequences. Despite this warning, the Claimants did not withdraw their claims or amend their position at that time.

[51]In April 2025, 14 new witness statements were submitted from individuals identified as having been elected representatives. These statements represented a significant shift in position, acknowledging that an election process had occurred but contending that the subsequent consultation was inadequate. The statements claimed these representatives had been "left without information or an opportunity to consult meaningfully" and would "never have agreed to stand had they been made aware of the process."

[52]The Claimants' application to amend, submitted at 4:36pm on 29 April 2025, sought to fundamentally alter both the basis of the claims and the identity of the Claimants. The application conceded that representatives had been elected but argued the subsequent consultation was inadequate and sought to substitute the 314 individual Claimants with just the 14 elected representatives. The application attributed the need for amendment to difficulties coordinating Mr J Powell & others -v- A Gomez Limited (in administration) [R1] & The Secretary of State for Business and Trade [R2] [URN Page 7 of 12 such a large group, language barriers affecting many Claimants who did not have English as their first language, and the gradual clarification of the factual position through disclosure and witness statement preparation.

[53]The First Respondent's skeleton argument for the preliminary hearing opposed both the original claims and the late amendment application. It set out the argument that the claims as originally pleaded had no reasonable prospect of success because representatives had been properly elected in accordance with section 188A of TULRCA, and cited Gillett v Bridge 86 Ltd in support of the proposition that only those representatives, and not individual employees, may bring claims in such circumstances. It further argued that the amendment application represented an attempt to circumvent the jurisdictional issue that would otherwise be fatal to the claims.

[54]During the hearing, Mr OCallghan confirmed on behalf of the Claimants that they now conceded the election process satisfied the requirements of section 188A of TULRCA—a complete reversal from the position maintained in their ET1 claims and witness statements. This concession effectively acknowledged that the central factual assertion on which the original claims were founded was incorrect. Findings of fact and application of

The law

[55]The Tribunal was required to determine two principal issues: first, whether to permit the Claimants' last-minute application to amend their claims; and second, if that amendment was refused, whether the claims as originally presented had any reasonable prospect of success. These determinations hinged primarily on the factual question of whether employee representatives had been properly elected, and the legal question of whether individual employees could bring claims under section 189 TULRCA if such representatives existed.

[56]In making its findings of fact, the Tribunal has applied the applicable standard of proof, namely the balance of probabilities, which requires the Tribunal to be satisfied that it is more likely than not that a particular event occurred or that a particular situation existed. The Tribunal has considered only the evidence to which its attention was specifically drawn during the hearing, including documents referenced in pleadings, submissions, and witness statements.

[57]The Tribunal finds as a fact that the First Respondent did conduct an election of employee representatives in November 2023. This process began on 2 November 2023 with the announcement of redundancies, continued with nominations being sought by 8 November, and concluded with the announcement of elected representatives on 13 November 2023. The Tribunal finds that 14 employee representatives were elected through this process, representing different departments and shifts within the business. This finding is now uncontroversial, as it was explicitly conceded by the Claimants' representative during the hearing, confirming the chronology that had been set out in the First Respondent's ET3 response.

[58]Based on the documents to which the Tribunal's attention was drawn, the Tribunal further finds that the elected representatives participated in consultation meetings on 16, 20, 24 and 27 November 2023. These meetings involved the provision of information about the redundancy process and discussions about the proposed dismissals. This timeline of events was not contested at the hearing. The evidence also indicates that further meetings scheduled for 1 and 5 December 2023 were postponed but never took place due to the company entering administration on 11 December 2023, resulting in all employees being made redundant with immediate effect. This truncation of the consultation process might well have given rise to legitimate claims that the consultation was inadequate, but that is distinct from the false claim that no opportunity for election was provided.

[59]On the balance of probabilities, and as evidenced by the claim forms themselves which were brought to the Tribunal's attention, the Tribunal finds as a fact that despite the election of representatives having occurred, all 314 Claimants submitted ET1 forms in May 2024 asserting that "no opportunity was given by the Respondents to elect employee representatives." This Mr J Powell & others -v- A Gomez Limited (in administration) [R1] & The Secretary of State for Business and Trade [R2] [URN Page 8 of 12 assertion was not merely a misunderstanding or mistake, but a fundamental misrepresentation of the facts that went to the heart of the claims. The Tribunal considers it particularly significant that at least 14 Claimants who were themselves elected representatives participated in this misrepresentation, signing claim forms containing statements they must have known to be untrue. This fact was not disputed during the hearing.

[60]The documents presented to the Tribunal demonstrate that the Claimants were put on notice about this factual inaccuracy through the First Respondent's ET3 response dated 17 June 2024, which clearly set out the chronology of the election process. Despite this, as evidenced by the witness statements provided to the Tribunal, the Claimants maintained their position and proceeded to submit 304 witness statements in January 2025, all containing identical wording at paragraph 6 reiterating the claim that "no opportunity was given by the respondents to elect employee representatives." These statements were formal witness statements signed with statements of truth, the making of false statements in which can constitute contempt of court.

[61]From the case management orders that were drawn to the Tribunal's attention, it is clear that the jurisdictional issue arising from this factual dispute was explicitly raised during the case management preliminary hearing on 29 January 2025. Employment Judge Fitzgerald identified this as "a very important issue" and directed a preliminary hearing specifically to address it. Following this hearing, as evidenced by correspondence included in the bundle, the First Respondent's solicitors sent a costs warning letter dated 26 February 2025, which the Tribunal finds provided "in relatively clear detail, fact of the election" and put the Claimants on further notice of the potential consequences of maintaining their position.

[62]Based on the chronology of events presented to the Tribunal, it is undisputed that the Claimants continued to maintain their position until 4:36pm on 29 April 2025, the day before this preliminary hearing, when they applied to amend their claims. This last-minute application, as evidenced by the document itself, fundamentally changed both the factual basis of their claims and the identity of the Claimants. This represented a complete reversal from consistently maintaining for nearly a year that no opportunity to elect representatives had been given, to suddenly acknowledging that representatives had been elected but the subsequent consultation was inadequate.

[63]On the balance of probabilities, the Tribunal finds that the explanation offered for this radical change in position - difficulties in coordinating a large group of Claimants, language barriers, and gradual clarification of the factual position - falls short of the "full honest and acceptable explanation" required by Khudados v Leggate. The Tribunal rejects the suggestion that the Claimants only became aware of the true position upon "further review of the first respondent skeleton argument" received the previous week, as the evidence presented shows that the fundamental facts about the election had been clearly set out in the ET3 response nearly a year earlier and repeatedly raised thereafter. The language barrier explanation is particularly unconvincing; on balance, it is inherently implausible that the 14 individuals who had been elected as representatives, participated in the election process, and attended multiple consultation meetings in English would not understand "the meaning of employee representatives" when signing witness statements denying any election occurred.

[64]From the evidence presented to the Tribunal, it is clear that there has been fundamental dishonesty in the presentation of the Claimants' case. The Tribunal is particularly troubled by the fact that at least 14 individuals who signed witness statements denying any election had occurred were themselves elected representatives who participated in the election process. As the Court of Appeal noted in Arrowsmith v Nottingham Trent University, when statements central to a claim are found to be untrue, this effectively constitutes a finding of dishonesty: "In our judgment, in a case such as this, where there is such a clear-cut finding that the central allegation... was a lie, it is perverse for the Tribunal to fail to conclude that the making of such a false allegation at the heart of the claim does not constitute a person acting unreasonably."

[65]Applying the principles established in Selkent Bus Co Ltd v Moore to the evidence before the Mr J Powell & others -v- A Gomez Limited (in administration) [R1] & The Secretary of State for Business and Trade [R2] [URN Page 9 of 12 Tribunal, the Tribunal finds that the proposed amendment is substantial rather than minor, fundamentally altering both the factual basis of the claims and substituting 14 representatives for the original 314 individual Claimants. The timing of the application - literally on the eve of the hearing specifically convened to address the jurisdictional issue - strongly suggests a tactical attempt to avoid the consequences of the false position maintained for nearly a year, rather than a genuine response to newly discovered information.

[66]As required by Selkent, the Tribunal must "balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it." While refusing the amendment would mean that even the 14 elected representatives could not now pursue claims about inadequate consultation (as the three-month time limit for bringing such claims has long since expired), this consequence flows directly from their own participation in advancing claims they knew or should have known were factually incorrect. Based on the evidence presented, the injustice to the First Respondent of allowing the Claimants to completely change their case at the eleventh hour after incurring significant costs defending against claims founded on a falsehood would be considerable and unwarranted.

[67]The Tribunal notes Mr OCallghan's submission that CFS Redundancy Payments drafted documents based solely on instructions received from the Claimants. However, as Edmund Burke observed in a different context, 'Your representative owes you, not his industry only, but his judgement; and he betrays you instead of serving you if he sacrifices it to your opinion.' Professional representatives in legal proceedings have duties both to their clients and to the Tribunal. They cannot merely act as conduits for claims they ought reasonably to have scrutinised, particularly where those claims involve straightforward factual assertions that could and should have been verified. The evidence presented in this case suggests an inadequate level of scrutiny was applied to the fundamental premise of these claims.

[68]The Tribunal finds it particularly concerning that the false premise of these claims might have gone unchallenged had the administrators of the First Respondent chosen, as is not uncommon, to take no active part in these proceedings. In such circumstances, the fundamental dishonesty in the pleaded cases of 314 people -- at least 14 of whom must have known they were dishonest -- would have proceeded unchecked, and judgment might have been granted on a false premise based on a tissue of lies or untruths. That cannot stand. This underscores the important public interest in honest litigation, particularly in tribunal proceedings where respondents in administration may often lack the resources to actively challenge false claims.

[69]Turning to the jurisdictional issue, the evidence and submissions before the Tribunal establish that the election of representatives satisfied the requirements of section 188A TULRCA, a point now conceded by the Claimants. Applying the principle established in Gillett v Bridge 86 Ltd, where representatives have been properly elected, "those representatives, and those representatives alone, can bring a claim. It follows that individuals cannot bring claims in those circumstances." The claims as originally presented therefore had no reasonable prospect of success, as they were brought by individual employees rather than the elected representatives.

[70]While the Court of Appeal in Ezsias v North Glamorgan NHS Trust established that "It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute," the Court also noted that such exceptional circumstances might exist where "the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation." Based on the evidence and submissions before it, the Tribunal finds that this is precisely such an exceptional case, where the Claimants' central factual assertion was not merely disputed but has now been admitted as being false.

Conclusion

[71]Having carefully considered all the evidence and submissions, the Tribunal refuses the Claimants' application to amend their claims. This decision follows a thorough analysis of the principles Mr J Powell & others -v- A Gomez Limited (in administration) [R1] & The Secretary of State for Business and Trade [R2] [URN Page 10 of 12 established in Selkent Bus Co Ltd v Moore, particularly the nature and timing of the proposed amendments and the relative hardship to each party.

[72]The proposed amendments are substantive rather than minor, seeking to fundamentally alter the entire basis of the claims and substitute the original 314 individual Claimants with the 14 elected representatives. The timing—submitted at 4:36pm the day before a hearing specifically convened to address the jurisdictional issue—strongly suggests a tactical attempt to avoid the claims being struck out. The explanation offered fails to satisfy the requirement in Khudados v Leggate for "a full honest and acceptable explanation."

[73]The Tribunal finds that allowing the amendment would cause significant injustice to the First Respondent, which has incurred substantial costs defending against claims now admitted to be founded on false assertions. The argument that the amendment would cause no procedural prejudice because the final hearing remains some time away misses the point; as emphasized in Khudados, "justice includes fairness to all sides and to the interests of the public in the efficient administration of Courts and Tribunals." Justice also encompasses the principle that a party should not be permitted to gain advantage through advancing claims based on assertions they know or should know to be untrue.

[74]Having refused the amendment application, the Tribunal must consider the original claims on their merits. The Claimants have now conceded that employee representatives were properly elected in accordance with section 188A TULRCA—directly contradicting their central factual assertion that "no opportunity was given by the respondents to elect employee representatives." Following Gillett v Bridge 86 Ltd, where representatives have been properly elected, "those representatives, and those representatives alone, can bring a claim" for inadequate consultation under section 189(1)(b) TULRCA.

[75]While Ezsias v North Glamorgan NHS Trust established that claims should rarely be struck out when central facts are disputed, this case falls within the exception identified for circumstances where "the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation." Here, the Claimants' central factual assertion has not merely been contradicted by documentation but has now been expressly abandoned. This is not a case requiring evaluation of competing factual narratives; rather, the jurisdictional defect is now admitted by the very parties who brought the claims.

[76]The Tribunal is compelled to strike out the claims under Rule 38(1)(a) of the Employment Tribunal Rules of Procedure 2024 as having no reasonable prospect of success. This decision does not rest on contested evidence requiring evaluation at a full hearing, but on the Claimants' own admission that the foundational premise of their claims is incorrect.

[77]The Tribunal is troubled by the apparent dishonesty evident in this case. The submission of 314 identical claim forms asserting that no opportunity to elect representatives was given, followed by 304 identical witness statements reiterating this false assertion, suggests coordination rather than coincidence. Most concerning is that at least 14 of the Claimants who made these false statements were themselves elected representatives. When individuals who themselves stood for election, were elected, and attended consultation meetings in that capacity then sign statements claiming no such election process occurred, the only reasonable conclusion is that they knowingly made false statements.

[78]This case underscores the importance of accurate pleadings in Tribunal proceedings. While the Tribunal system is designed to be accessible to litigants in person, this does not diminish the obligation of honesty in presenting claims. Professional representatives specialising in redundancy claims should be familiar with the legislative framework and have a responsibility to make reasonable enquiries into the factual basis of claims, particularly where those claims involve straightforward assertions central to jurisdiction. Mr J Powell & others -v- A Gomez Limited (in administration) [R1] & The Secretary of State for Business and Trade [R2] [URN Page 11 of 12

[79]The evidence indicates that there were multiple opportunities to correct the factually inaccurate position maintained in these proceedings. Had the administrators of the First Respondent not engaged legal representation to challenge these claims, the fundamental dishonesty in the witness statements might have gone undetected, potentially resulting in awards based on demonstrably false premises.

[80]The Tribunal therefore strikes out all claims under Rule 38(1)(a) of the Employment Tribunal Rules of Procedure 2024. Given the finding of fundamental dishonesty in the presentation of these claims, the First Respondent may wish to make an application for costs under Rule 76. While such an application is not before the Tribunal today, the judgment in Arrowsmith v Nottingham Trent University suggests that advancing claims materially dependent on untrue assertions may constitute unreasonable conduct for costs purposes.

[81]The Tribunal acknowledges that some Claimants may have had legitimate grievances about the adequacy of consultation, particularly given the abrupt termination of the consultation process when the company entered administration. However, those concerns could only have been properly ventilated through claims brought by the elected representatives within the statutory time limit. The attempt to circumvent this requirement through false statements about the election process has ultimately denied all Claimants any opportunity for remedy. APPROVED Judge M Aspinall (sitting as an