Alec Birch and others v Fox Fabrication & Construction Ltd (in voluntary liquidation): 2400173/2020 and others

EMPLOYMENT TRIBUNALS

Case No 2400173/2020, 2400174/2020, 2400175/2020, 2400176/2020, 2400177/2020, 2400178/2020

Between

Alec Birch and othersClaimant

Fox Fabrication & Construction Ltd (in voluntary liquidation)Respondent

Before

Employment Judge Shotter

Date 29 January 2020

JUDGMENT

[1]By consent the claim for a protective award brought under section 189(1)(d) of the Trade Union and Labour Relations (Consolidation Act) 1992 is wellfounded, the respondent having failed to consult with the claimants or comply with section 188 of the said Act when the respondent went into voluntary liquidation in or around 25 September 2019. The claims are to be listed for a remedy hearing with an estimated length of 3 hours before a full Tribunal.

[2]The parties will send in dates of unavailability and will be advised of the hearing date in due course. 1 of 2 Case Number: 2400173/2020 2400174/2020 2400175/2020 2400176/2020 2400177/2020 2400178/2020 29.1.2020 REMEDY JUDGMENT Employment Tribunals Rules of Procedure 2013, Rule 21 The liability judgment in these proceedings having been given on 29 January 2020 and sent out on 31 January 2020, and on the information before the Regional Employment Judge in circumstance where no in person hearings are proceeding because of the Covid-19 pandemic, The judgment of the Tribunal is that:

[1]The Remedy Hearing listed on 12 May 2020 is vacated.

[2]Under Section 189(1)(d), (2), (3) and (4) of the Trade Union and Labour Relations (Consolidation) Act 1992 the Tribunal makes a protective award in respect of each of the claimants and the respondent is ordered to pay remuneration to them for a protected period of 90 days beginning on 6 September 2019.

[3]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply to these awards.

REASONS

[1]By a claim form presented on 10 January 2020 the claimants claimed a protective award in respect of breach of the collective consultation requirements. No response was presented to the claims by the respondent. A liability judgment was made in favour of the claimants at a hearing on 29 January 2020 and the proceedings were listed for Remedy Hearing on 12 May 2020.

[2]On a full consideration of the file of proceedings and in the circumstances such that no in person hearings are being held currently and may not be held for several weeks or months, it was possible to issue this Remedy Judgment under Rule 21 without a hearing. Code P under the case number above reflects this.

[3]On the information provided, the Tribunal makes the following findings. The claimants were employed as ground workers by the respondent which carried on business from Unit 5, Towngate Works, Dark Lane, Mawdesley L40 2QU, employing over 20 employees. There was no independent trade union recognised for collective bargaining, consultation or negotiation with the workforce.

[4]On 6 September 2019, the claimants and other employees were made redundant and notified that the respondent was going into liquidation. The company was formally put into creditors voluntary liquidation on 25 September 2019.

[5]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. The dismissals were put into effect at once on 6 September 2019.

[6]In these circumstances, the Tribunal makes an award under Section 189 in favour of the claimant for the maximum protected period of 90 days commencing on 6 September 2019.

[7]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 first 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; and

(b) the date of termination of the employment of each such employee. 7. The respondent will not be required to make any payment under the protective awards 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 respondent.