Mrs S Walker and Others v T A Anders & Company Ltd (in Administration) and The Secretary of State for Business Energy and Industrial Strategy and (but only in the claims listed at schedule 2 to this Judgment): 2400784/2020 and Others
REASONS
[1]All of the claimants claimed a protective award in respect of breach of the collective consultation requirements on redundancy. No response was presented to the claims by the first respondent, which is in administration. The second respondent did provide a response in the claims to which he was a party, but made clear that a representative would not attend the hearing.[2]The consent of the administrator had been provided for the stay to be lifted and the claims to proceed against the first respondent, but only in respect of claims for a protective award. Those who attended the hearing confirmed that the only claim to be determined was one for a protective award and therefore only such claims were considered.[3]The hearing was conducted by CVP remote video technology. It was attended by some of the claimants. They were represented by either Mr Tanner or Mrs Walker, save for four claimants who were unrepresented (and did not attend). Mr Leech and Mrs Walker gave evidence under oath (having provided a written statement prior to the hearing). Mr Melody, Mr Whitehead and Mr O’ Boyle also each provided a witness statement which was accepted without challenge.[4]Mr Tanner made submissions. Mrs Walker also briefly did so.[5]The Tribunal makes the following findings:a. The respondent carried on business in Trafford Park.b. There was no trade union recognised for collective bargaining, consultation or negotiation with the workforce. There were GMB members on the site, but the GMB was not recognised for the purposes of section 188(1B)(a) of the 1992 Act;c. Some of the employees were first notified that there was an issue on 21 January 2020. There was no collective consultation undertaken and the employees were not invited to elect representatives.d. A letter was sent to all of the claimants telling them that the respondent had ceased trading and that they were redundant with immediate effect on 22 January 2020;e. The respondent employed 21 employees at the establishment, all of whom were made redundant on the same date.[6]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.[7]In these circumstances, the first respondent was in breach of the duty under Section 188 of the 1992 Act and the Tribunal makes an award under Section 189 in favour of the claimants for the maximum protected period of 90 days commencing on 22 January 2020.[8]The first 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 first 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 first respondent. NOTE[10]These claims all arise from the Administration of the first respondent, and the necessary consent to the claims proceeding has been given. No response to the claim has been received from the first respondent. As explained, the claims succeed.[11]A protective award is a two-stage process. The Tribunal at this stage makes no financial awards, but gives a judgment that each of the listed claimants are entitled to a protective award in the terms set out above. The claimant must then seek payment of their individual award from the first respondent (or the Secretary of State), quantifying the same.[12]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.