Employment Judge SekhonIn person for claimantDate 30 June 2021
JUDGMENT
Employment Tribunals Rules of Procedure 2013, Rule 21 Claims At the beginning of the hearing, Ms Skupski confirmed that he was content to proceed with the claims in the claim form, namely the failure to comply with the collective redundancy consultation obligation, pursuant to section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRA”) for which she is seeking notice pay of 45 days. The respondent not having presented a response to the claim, did not attend the hearing on 25 June 2021. Having heard the evidence of the claimant under oath and subsequently being provided further information comprising of a contract of employment signed by the claimant on 5 September 2019, email from Paul Egan, Executive Chairman of the respondent, dated 3 July 2020 confirming that the UK faction of the business will be entering into administration, and email dated 7 July 2020 from the respondent, The Judgment of the Tribunal is that:[1]The claimant’s complaint under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) of a failure by the respondent to comply with the requirements of section 188 of the 1992 Act is well-founded.[2]The Tribunal orders the respondent by way of protective award under section 189(3) of the 1992 Act to pay to the claimant a payment equivalent to remuneration for the period of 45 days beginning on 7 July 2020.[3]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply to these awards.
REASONS
The Tribunal makes the following findings based upon the claim:[1]The respondent, a company that refurbishes, processes and resells mobile phones, carried out business in Bathgate, Macclesfield and Scotland in the United Kingdom. The claimant worked at the Macclesfield branch. He earned £85,000 gross per month. There was no trade union recognised for collective bargaining, consultation or negotiation with the workforce at the Macclesfield branch.[2]The claimant was placed on furlough on 4 April 2020. He was advised whilst on furlough by email dated 3 July 2020 from Paul Egan, executive chairman of the respondent, that the respondent firm was to be placed into administration and the UK offices were to close. He was invited to a telephone meeting on 7 July 2020, at the same time as the other employees at the Macclesfield branch of the respondent. He was dismissed with immediate effect. There was no consultation with the claimant. The claimant stated that he spoke to the chairman, Paul Egan, a week prior to receiving the email on 3 July 2020 and he was advised that there were no concerns about the business.[3]The claimant estimated 80 employees worked at the Macclesfield branch, a majority of which were made redundant at the same time. KPMG were appointed as administrators on 7 July 2020 and their website confirms that 118 staff were made redundant in the UK on, or around, the same date. Whilst there is no clear evidence of the exact number of employees that were made redundant from the Macclesfield branch, the Tribunal is satisfied on the evidence of the claimant that this was in excess of 20 employees. The Tribunal has not therefore needed to consider whether separate sites at Macclesfield, Bathgate and Scotland would be considered as one establishment for the purposes of the Trade Union and Labour Relations (Consolidation) Act 1992.[4]There was no proper warning or notice given to, or consultation with the workforce. No employee representatives had been elected or appointed for any such consultation within Section 188A of the 1992 Act. The dismissals were put into effect without any consultation or advance notice.[5]In these circumstances, the respondent was in breach of the duty under Section 188 of the 1992 Act and the Tribunal can make an award under Section 189 in favour of the claimant for up to a maximum protected period of 90 days. The claimant is seeking an award of 45 days.[6]The Tribunal at this stage makes no financial award but gives a judgment that the claimant is entitled to a protective award in the terms set out above. The claimant must then seek payment of their individual award from the respondent (or the Secretary of State), quantifying the same.[7]Failure to pay (should that occur), or any dispute as to the amount payable, then becomes a matter for a further separate claim under s.192 of the Trade Union and Labour Relations (Consolidation) Act 1992 for payment of the award.[8]The respondent is advised of the provisions of Regulation 5 of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996, such that, within 10 days of the decision in these proceedings being promulgated or as soon as is reasonably practicable, the respondent must comply with the provisions of Regulation 6 of the 1996 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; andb. the date of termination of the employment of each such employee.[9]The respondent will not be required to make any payment under the protective award 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 first respondent.