Mr S A Sileshi and others v STA Travel Ltd (In Creditor’s Voluntary Liquidation) and Secretary of State for Business, Energy and Industrial Strategy: 2401066/2021 and others

EMPLOYMENT TRIBUNALS

Case No 2401066/2021, 2401701/2021

Between

Mr S A Sileshi and othersClaimant

STA Travel Ltd (In Creditor’s Voluntary Liquidation) and Secretary of State for Business, Energy and Industrial StrategyRespondent

Before

Employment Judge McDonald

Date 27 July 2022

REASONS

[1]This was a preliminary hearing held in chambers without the parties present. It was held to decide whether any of the claimants’ claims should be struck out. A claim would be struck out if there was no reasonable prospect of the claimant showing their claim was brought in time or within any extension of the usual time limit allowed by the Tribunal because it was not reasonably practicable for the claim to have been brought in time.

[2]The claimants were all employed by the first respondent. They were all made redundant on 2 September 2020. There was no consultation prior to the redundancies. The claimants say that breaches the duty to consult in s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). They each seek a protective award under s.189 of TULRCA for the maximum amount of 90 days’ pay. The first respondent is in liquidation and has not entered a response to the claims. The Secretary of State has made written submissions.

[3]Some of the claimants ticked boxes on their claim form to say they are bringing claims for unfair dismissal, unlawful deduction of wages, breach of contract, redundancy payment or failure to pay holiday pay. However, the narrative parts of each of their claim forms seems to me to confirm that the only claim being brought by each is for a protective award. As I understand it, the claims for other payments have already been resolved by payments made by the Redundancy Payments Service.

[4]If I am wrong about that, and some claimants are indeed bringing claims other than for a protective award, my decision would have been the same. The reason for that is because the same time limits and reasons for extension apply to the majority of those other claims, i.e. three months unless it was not reasonably practicable to bring claims in time. A different time limit (six months) applies to claims for a statutory redundancy payment but none of the claimants who have ticked the “redundancy payment” box appear to me on a reading of their claim form as a whole to be claiming a statutory redundancy payment. Mr Orrell, the only claimant whose claim I have struck off, only claims a protective award in his claim form.

[5]Each of the claimants issued their claims in this case outside the usual 3- month time limit. Because the Tribunal considered that these claims were potentially out of time, it issued a strike out warning on 22 July 2021. That strike out warning said that the Tribunal on its own initiative was considering striking out the claims because there was no reasonable prospect of each claimant showing that they had filed their claim form with the Tribunal within the time limit relevant to the claims. The claimants were given until 12 August 2021 to object to the strike out proposal, giving reasons or requesting a hearing.

[6]The claims of those claimants who did not respond to the strike out warning were struck out by a Judgment dated 23 September 2021 which was sent to the parties on 24 September 2021. Those claimants who did respond to the strike out warning are listed in the attached schedule. This judgment records my reasons for deciding to strike out Mr Orrell’s claim but not to strike out the claims of the other claimants listed in the schedule. In reaching my decision I considered the claim form for each claimant, their early conciliation certificate and also the written representations which were made in response to the strike out warning. I also took into account the written submissions made on behalf of the Secretary of State to the extent they were relevant to the issues I was deciding.

The Issues

[7]To strike out a claimant’s claim I would need to be satisfied that there was no reasonable prospect of that claimant satisfying the Tribunal that:(1) Their claim was presented within the three-month time limit set out in section 189(5) of the TULRCA,

(2) Or, if it was not, that their claim was presented within such further time as the Tribunal considers reasonable in a case where the Tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. Relevant Law Time limits in protective award cases

Relevant Law

[8]Section 189(5) of TULRCA provides: “An [Employment Tribunal] shall not consider a complaint under this section unless it is presented to the Tribunal –(a) before the [date on which the last of the dismissals to which the complaint relates] takes effect, or

(b) [during] the period of three months beginning with [that date], or

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented [during the] period of three months, within such further period as it considers reasonable.”

[9]Section 189(5A) of TULRCA provides: “Where the complaint concerns a failure to comply with a requirement of section 188, section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (5)(b).”

[10]The Court of Appeal in Marks and Spencer PLC v Williams-Ryan

[2005] EWCA Civ 470

sets out a number of legal principles to consider in relation to time limits. The principles were set out in relation to a claim for unfair dismissal but as the same test applies in relation to claims under section 188, they are equally relevant. The principles to consider are as follows:• [The relevant section] should be given a liberal interpretation in favour of the employee.

• Regard should to be had to what, if anything, the employee knew about the right to complain to a Tribunal and of the time limit for doing so.

• Regard should also be had to what knowledge the employee should have had, had they acted reasonably in the circumstances. Knowledge of the right to make a claim does not, as a matter of law, mean that ignorance of the time limits will never be reasonable. It merely makes it more difficult for the employee to prove that their ignorance was reasonable.

• Where a claimant retains a solicitor and fails to meet the time limit because of the solicitor’s negligence, the claimant cannot argue that it was not reasonably practicable to submit the claim in time.

[11]The Employment Appeal Tribunal in the case of Adams v British Telecommunications PLC

[2017] ICR 382

held that it is an error of law for a Tribunal to treat the fact that a claimant has presented a claim in time (albeit a defective one) as meaning that a second claim raising the same complaint could reasonably practicably have been presented in time. Instead the focus should be on the second claim and whether there was any impediment to timely presentation of that claim. Striking out

[12]Rule 37 of the Employment Tribunal Rules of Procedure 2013 (“the ET Rules”) gives the Tribunal the power to strike out all or part of a claim: “37.— Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).”

[13]In this case, the Tribunal is considering striking out each of the claims on the basis they have no reasonable prospect of success (ET Rules 37(1)((a)) on the time limit issue.

[14]ET Rules 37(2) says that a claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

[15]In Abertawe Bro Morgannwg University Health Board v Ferguson [2013] I.C.R. 1108 the Employment Appeal Tribunal warned that “in a case which is always likely to be heavily fact sensitive….the circumstances in which it will be possible to strike out a claim are likely to be rare. In general it is better to proceed to determine a case on the evidence in light of all the facts.” However, in Ahir v British Airways Plc

[2017] EWCA Civ 1392

the Court of Appeal said that “Tribunals should not be deterred from striking out claims….which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary….being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored….Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between 'exceptional' and 'most exceptional' circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high’”. Findings and Conclusions

[16]The claimants’ effective date of termination was 2 September 2020. As such, any claims with a three-month time limit should have been presented to the Tribunal by 1 December 2020. Even taking into account any extension for early conciliation the claims brought by all the claimants in these proceedings were brought outside the relevant time prescribed by s.188(5)(b) TULRCA.

[17]Apart from Mr Sileshi, the trigger for the claimants in both categories for filing their Tribunal claims in these proceedings was the decision of Employment Judge Britton in Nottingham Employment Tribunal to make a protective award in the cases brought by Ms Gemma Grimbley and Ms Claire Treacy (case numbers 2603282/2020 and 2603288/2020). I refer to that below as “the Nottingham decision”. The original Judgment in that case dated 11 January 2021 and sent to the parties on 13 January 2021 made a protective award in relation to all the first respondent’s employees. On reconsideration, Employment Judge Britton limited the award to the two individual claimants in the Nottingham decision. The decision to limit the award to the claimants in the Nottingham decision meant that all other former employees of the first respondent would have to bring their own claims for a protective award. That seems to have been communicated to a number of the first respondent’s former employees by the claimants in the Nottingham decision by way of a Facebook group for the first respondent’s former employees in early February 2021. Not all the claimants in this case were on social media and so some of them learnt of the need to bring their own claims a few days later. The 2021 Early Conciliation claimants

[18]The claimants in this case fall into two broad categories. The first category in terms of size is those claimants who did not start the ACAS early conciliation process until February 2021. These claimants say that it was not reasonably practicable for them to have brought their claims before they did because they did not know about their entitlement to claim a protective award until the Nottingham decision.

[19]Although their submissions on this point are not identical, the common thread is that they say that the first respondent appointed a third party, ERA Solutions Limited, to assist the first respondent’s former employees in making claims for redundancy payments and other monies from the Redundancy Payment Service. Some of the claimants say that they were not told by ERA Solutions Limited that there was a right to claim a protective award for failure to inform and consult. Others say that they were told that they could not claim a protective award because they were earning below £538 per week (or in one case were told that it was because they were earning below £500 per week). The claimants falling within this category are set out in the table below. Case Claimant Name Number 2401568/2021 Mrs Carla Warrington 2401577/2021 Miss Hollie- May Dillon 2401586/2021 Mr Callum O'Neill 2401603/2021 Mr Benjamin Chadwick 2401615/2021 Mr Owen Gregory 2401625/2021 Mr Calum Stacey-Grant 2401656/2021 Miss Anastasia Gklantzouni 2401658/2021 Mr Michael Holland 2401694/2021 Mrs Umelaila Hussain 2402069/2021 Mr Mark Van Leeuwen

[20]Within this category of February 2021 EC claimants there is a sub-category. Mrs Warrington and Mrs Hussain were both on maternity leave when they were made redundant. They both say that their absence on maternity leave meant that they had little contact or information from the first respondent and that this contributed to their being unaware of their ability to claim a protective award.

[21]As this is consideration of whether to strike out the claims, the relevant test I am applying is whether there is no reasonable prospect of a claimant showing that their claim was brought in time. In practice, that means in this case that there is no reasonable prospect of a claimant showing that it was not reasonable practicable for them to bring the claim within the usual time limit, and that any claim was brought within such reasonable time after it was reasonably practicable to do so.

[22]In relation to all these February 2021 EC claimants, it will be necessary to hear evidence so that findings can be made about what and when each of them knew (and should have known) about the right to bring a protective award claim and whether they acted reasonably in light of that knowledge. There will also need to be findings about the extent, if any, to which they are fixed with the knowledge of those who were advising them, i.e. ERA Solutions Limited. Without hearing that evidence, I cannot say on the basis of the papers before me that there is no reasonable prospect of their showing that it was not reasonably practicable to bring their claims in time.

[23]In relation to these claimants, therefore, there will be a preliminary hearing to decide whether or not it was reasonably practicable for them to bring their claims in time and, if not, whether their claims were brought within such further period as was reasonably. The 2020 Early Conciliation claimants

[24]The second broad category of cases includes those claimants who did initiate ACAS early conciliation in September or October 2020 but then did not lodge their claims in these proceedings until 2021. As with the February 2021 EC conciliation claimants, I am satisfied that the claims were brought outside the three-month time limit even allowing for the extension of that time limit triggered by the early conciliation process. The claimants concerned are those set out in the table below: Case Claimant Name Number 2401066/2021 Mr Sileshi Assefa Sileshi 2401701/2021 Mr Domonic Orrell 2401712/2021 Mr John Bradley 2402117/2021 Mr Philip Cooke 2402442/2021 Mrs Katrina Malley

[25]As my Judgment makes clear, I have decided to strike out Mr Orrell’s claim. I set out the reasons for that below. In relation to the other claimants in this category, the reasons why they say it was not reasonably practicable for them to bring their claims until February 2021 (or in one case March 2021) are slightly different. Mr Bradley and Mrs Malley say that they understood from what they were told by ACAS that it was not possible to proceed with claims against the first respondent because it was in liquidation.

[26]Mr Cooke says that he submitted a claim on 1 October 2020. He says he received a reference number when he submitted the form online and therefore assumed his claim was proceeding. His case is in essence that it was not reasonably practicable for him to file a second claim because he thought he already had a valid first claim lodged with the Tribunal. Mr Sileshi’s submission is that he was not in a position to proceed with filing his Tribunal claim because of his state of mind and his family circumstances.

[27]In relation to each of those, I find that I will need to hear evidence in order to decide whether they can substantiate their submissions that it was not reasonably practicable for them to bring their claims until February 2021. I therefore do not strike out their claims because I cannot say there is no reasonably prospect of them satisfying the Tribunal that it was not reasonably practicable to bring their claims in time. Their cases will proceed to a preliminary hearing on time limits. Mr Orrell

[28]I have decided to strike out Mr Orrell’s claim as having no reasonable prospect of satisfying a Tribunal that it was not reasonably practicable for him to bring a claim in time.

[29]Mr Orrell started early conciliation on 4 September 2020 and the early conciliation certificate was issued on the same day. The relevant time limit for bringing a claim for a protective award expired on 1 December 2020.

[30]Mr Orrell explained in his written submissions that he had attempted to bring a claim in time in the Central London Employment Tribunal under case reference 22012854900 in September 2020. His claim was rejected because he had not obtained an ACAS early conciliation certificate so had no number to insert in his claim form. Mr Orrell then obtained an ACAS early conciliation certificate and emailed the details to Central London Employment Tribunal.

[31]He says that two months later, on 5 November 2020, he received an email saying that his claim was not accepted because it did not have an ACAS early conciliation number. That notification told him he could apply to reconsider the decision within 14 days. In his written submission, Mr Orrell said that he tried on a number of occasions to telephone the Employment Tribunal but could not get a response. He accepts that he “gave up” and did not apply for reconsideration. On Mr Orrell’s own account, therefore, he knew about his right to bring a claim in September 2020 and indeed presented a claim but then did not pursue it further when it was rejected (for example, by seeking a reconsideration of the rejection of his claim form in November 2020).

[32]I remind myself that Adams means my focus should be on Mr Orrell’s second claim and whether there was any impediment to timely presentation of that claim. In this case, Mr Orrell has not set out what impediment there was to him bringing a second claim. As I have said, it is apparent from his own account that he knew of the right to bring a claim and of the process for doing so. He had received notification of rejection of his first claim by 5 November 2020. This was not, therefore, a case where he thought he had already lodged a valid claim. There were three weeks from the rejection of his first claim until the time limit for bringing a claim ran out. He has not set out any impediment which made it not reasonably practicable for him to file his second claim in time. On that basis I find that there is no reasonable prospect of Mr Orrell satisfying a Tribunal that it was not reasonably practicable for him to bring his claim in time. I therefore struck out his claim.

Summary

[33]Mr Orrell’s claim is struck out. The other claimants’ claim will be listed for a preliminary hearing at which a Judge will decide the time limit issue having heard evidence from each claimant. A Case Management Order will be sent to the claimants setting out the steps they need to take to prepare for that preliminary hearing.

Introduction

[1]This was a public preliminary hearing held to decide whether the claimant’s claims should be allowed to proceed despite having been brought outside the usual time limit. All the claimants were bringing claims for a protective award arising from the first respondent’s failure to consult with them prior to their dismissal for redundancy on 2 September 2020. The first respondent is in liquidation, which is why the second respondent has been joined as a party.

[2]The hearing took place by way of a hybrid hearing with some claimants attending in person and others attending by CVP video link. Neither of the respondents attended. The second respondent had provided written submissions which I took into account in reaching my decision.

[3]I heard evidence and submissions from the claimants who did attend on 12 and 13 April 2022. To avoid any claimants having to attend for the whole of the hearing, I directed that the evidence be heard in batches of two or three claimants while making it clear that any other claimants were fully entitled to attend to observe those parts of the hearing in which they themselves were not giving evidence. I considered the case in chambers on 14 April and 1 July 2022.

The Issues

[4]In relation to each claimant’s claim I had to decide:(1) Whether it was reasonably practicable for the claimant to have brought their complaint within the usual three month time limit for bringing a protective award claim;

(2) If it was not, whether their claim was presented within such further time as the Tribunal considers reasonable. Relevant Law Time limits in protective award cases

Relevant Law

[5]Section 189(5) of TULRCA provides: “An [Employment Tribunal] shall not consider a complaint under this section unless it is presented to the Tribunal –(a) before the [date on which the last of the dismissals to which the complaint relates] takes effect, or

(b) [during] the period of three months beginning with [that date], or

[6]Section 189(5A) of TULRCA provides: “Where the complaint concerns a failure to comply with a requirement of section 188, section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (5)(b).”

[7]The Court of Appeal in Marks and Spencer PLC v Williams-Ryan

[2005] EWCA Civ 470

• Regard should to be had to what, if anything, the employee knew about the right to complain to a Tribunal and of the time limit for doing so.

[8]An assertion of ignorance as to the right to make a claim or of the relevant time limit or procedure for making a claim is not conclusive as to whether it was reasonably practicable to bring a claim. The Tribunal has to be satisfied both as to the truth of that assertion and that the ignorance was reasonable (Porter v Bandridge Limited

[1978] ICR 943

). Claimants who did not attend

[9]Following the “in chambers” hearing on 18 November 2021, I directed that each of the claimants provide a witness statement and copies of any documents they wished the Tribunal to consider at the preliminary hearing. 9 of the claimants did so. All the claimants were warned by a letter from the Tribunal that if they did not attend to pursue their case, the claims would be dismissed. It was explained that this was because the onus was on a particular claimant to establish that it was not reasonably practicable for them to bring their claim based on the facts of their specific case. Claimants who did not contact the Tribunal about non-attendance

[10]The 10th to 14th claimants did not attend and did not give reasons for nonattendance. I am satisfied they had notice of the hearing. None of them had provided evidence in advance of the hearing. The onus was on the claimants to explain why it was not reasonably practicable for them to bring their claims. They have not done so and I therefore dismiss their claims. For the avoidance of doubt, this applies to the following claimants:• Mr Sileshi Assefa Sileshi (2401066/2021)

• Mr Benjamin Chadwick (2401603/2021)

• Mr Owen Gregory (2401615/2021)

• Mr Calum Stacey-Grant (2401625/2021)

• Mrs Katrina Malley (2402442/2021) Miss Dillon (2401577/2021)

[11]Miss H Dillon was due to give evidence on the morning of 12 April 2022. She had provided a witness statement and documents in advance of the hearing. However, on the morning of the hearing she emailed the Tribunal to say that she could not attend due to “unforeseen circumstances”. She provided some further information on request. I have directed that she provide further details and confirmation that she is still pursuing her claim. Consideration of her claim is postponed pending her response. Claimants who did attend

[12]I set out below my findings of fact based on the evidence I heard from the claimants and the documents they had provided. These findings of fact are divided into two parts. The first deals with the background facts common to all the claimants and the second deals with findings of fact specific to particular claimants. I set out my findings about the individual claimants in the order I heard their evidence. Background Facts

[13]The claimant's claims for a protective award arise from their dismissal for redundancy on 2 September 2020. It is common ground that there was a failure to consult prior to their dismissal.

[14]The first respondent ceased trading at the end of August. At that point the majority of the first respondent’s employees were on furlough. Those not on furlough were working from home.

[15]The internal communications at this point were being sent to the employees’ work emails. That meant that unless employees proactively logged on to those emails (or had synced their email account on their phone) they would not necessarily receive all the updates automatically.

[16]On 2 September 2020 there was a video call webinar for all employees. This was relatively short and involved the Chief Operating Officer of the first respondent reading out a statement confirming that the first respondent had ceased trading and that all employees were being made redundant on that date. The statement explained that ERA Solutions had been engaged to provide assistance to the employees with claims processing. There was no opportunity to ask questions during that webinar.

[17]On that same day the employees were sent a letter confirming their dismissal. That letter was in standard terms. As well as confirming termination of employment it said that the employee “may be entitled to various claims such as notice pay, unpaid wages and redundancy payments (where applicable) which are authorised by the Department for Business, Energy and Industrial Strategy – Redundancy Payment Service (“RPS”)”. The letter said that ERA Solutions had been “engaged as Employment Rights Act specialists to assist employees with claims processing”. The letter enclosed information “which will tell you what steps you now need to take and who to contact at ERA to assist you”. It also advised employees to immediately check their eligibility for Jobseeker’s Allowance so that they did not miss out on potential benefits.

[18]That letter included a pack of information including a fact sheet from the Insolvency Service setting out what rights employees had and what they could apply for. That document refers to redundancy pay, holiday pay, “money you are owed by your employer, for example unpaid wages, overtime, commissions etc.” and statutory notice pay. It advised that there were two separate applications which an employee had to complete online. The first was for redundancy pay, holiday pay and other money owed. The second was for statutory notice pay. There was a link to claim online. There is no reference in that fact sheet to a protective award or any entitlement to compensation for failure to consult.

[19]There was also a letter and employee FAQ provided by ERA. The letter was in standard terms. It reiterated that ERA had been “engaged to assist you with making your claims for your outstanding statutory payments following your redundancy”. It attached a copy of the RP1 online claims pack to enable the employee to make claims for their “arrears of pay, holiday pay, redundancy pay and payment in lieu of notice”. There was then a series of FAQs dealing with matters such as how long it would take for the employee to get paid and when they would get an update on their claim. There is no mention of the protective award or compensation for failing to consult, nor to any requirement to bring Tribunal proceedings. A further DWP redundancy fact sheet provided information on where to find another job and on applying for benefits. The employee FAQ for STA Travel explained what an employee could claim on their RP1. That referred again to arrears of pay, holiday pay and redundancy pay but made no reference to the possibility of claiming for a protective award. That fact sheet ended with the question, “Who can I talk to if I have a question?” which referred the employee to ERA Solutions Limited. A specific email address was given which I find directed enquiries to Dan Large, a manager at ERA.

[20]In terms of further communications with ERA, some individuals did contact them direct. The only other generic response from ERA was an email sent by Mr Large on 16 October 2020. It provided an update on the process. It referred to the fact that there had been an error in an upload on the holiday section which meant that some employees’ holiday pay had not been correctly calculated. It provided answers to some other general questions which had been sent by employees by email. This included confirmation that arrears of wages were only up to the date of dismissal not the end of the week of dismissal, and clarification of the way that redundancy payments had been calculated. In his email Mr Large said that he had “tried to cover the general queries that have been raised this week, however I have re-attached the general Q & A help sheet which does cover most queries”. I find that is the FAQ that was sent with the original pack on 2 September. There is nothing in that “update” which refers to an entitlement to a protective award, the right to claim compensation for failure to consult or the need to make a Tribunal claim.

[21]Around the end of August 2020 there had been a Facebook group set up for and by STA employees to communicate about issues arising from the redundancy situation (“the Facebook Group”).

[22]On 11 January 2021 a former employee of the first respondent, Gemma Grimley, posted on that Facebook page to say that she and a colleague had been awarded a protective award by a Tribunal in Nottingham. She reported that the Judge in that case had made a protective award in favour of all former STA employees. At that point the judgment in that case (“the Grimley Judgment”) had not been sent to Ms Grimley. Subsequently, the Grimley Judgment was reconsidered by the judge in that case and varied to make it clear that it applied only to those claimants who had brought a claim for a protective award in that case, not all former employees of the first respondent.

[23]On 3 February 2021, another former employee of the first respondent, Petra Phippen, posted on the Facebook Group a message saying that she had spoken to ACAS and the Employment Tribunals to try and clarify what the position was. She had then emailed the Insolvency Service who, to summarise, explained that she would need to make her own claim to the Tribunal for a protective award because she was not covered by the Grimley judgment. In her post she said that it looked like everyone would therefore need to proceed with their own claim and try and get them to link up with Ms Grimley’s claim. There were then further Facebook posts and WhatsApp messages clarifying the steps exactly people needed to take to bring a claim. Findings relating to individual claimants Miss Gklantzouni

[24]Miss Gklantzouni was on furlough when the redundancy happened. She received the standard information sent to employees by ERA. She was part of the Facebook Group from around October 2020. She did see posts on it referring to something called a protective award. She understood it was a claim which those earning more than £538 per week could bring to the Tribunal to claim money above that statutory weekly cap payable by the Redundancy Payment Service. Her own weekly wage was below that figure so she did not think she could make a protective award claim. She saw the posts about the Grimley Judgment in January 2021 and understood it applied to all former employees. After seeing Ms Phippen’s post in the Facebook Group, she contacted a colleague, Mr Kadri, by WhatsApp for advice on next steps. She contacted ACAS to begin Early Conciliation on 9 February 2021 and filed her Tribunal claim on 10 February 2021. Miss Gklantzouni had not gone through any kind of redundancy process like this before. Immediately after redundancy her focus was on trying to find another job. Callum O’Neill

[25]Mr O’Neill received the standard information sent to employees by ERA. He was not aware of anything called a protective award until the 11 January 2021 post from Gemma Grimley. He did not take action at that point because he thought the Grimley Judgment applied to all former employees. After seeing Ms Phippen’s post on 3 February 2021 he contacted ACAS to start Early Conciliation that same day and filed his Tribunal claim on 5 February 2021. He felt he had been misled by ERA who had not mentioned a protective award in their documentation. He found the period from September to December 2021 very stressful because he was trying to find another job while still having rent and other living expenses to cover. Mrs Warrington

[26]Mrs Warrington was on maternity leave from November 2019 and had intended to return from maternity leave in November 2020. She had had no “keeping in touch” days so was in general “out of the loop” in terms of communication with colleagues at the time the redundancies took place. She received the standard ERA information. She also spoke to Mr Large of ERA 2-3 times and had numerous email exchanges with him about her holiday pay position which was complicated by her maternity leave. I accept Mrs Warrington’s evidence that there was no mention of a protective award or an explanation of what that was during those exchanges. Mrs Warrington joined the Facebook Group at the end of August 2020, shortly after it was set up. She had a young child and therefore did not regularly monitor the Facebook Group or check up on the posts in it. To the contrary, she had actively “muted” it because of the number of posts. She was alerted to the Grimley Judgment by a WhatsApp group message by her former manager. Mrs Warrington then checked on Facebook and saw Ms Grimley’s post. She was not sure what her position was because she was on maternity leave when the redundancies happened. She did not know what a protective award was and did not take any action because Ms Grimley said all former employees were covered by the judgment. After seeing Ms Phippen’s post on 3 February 2021 she contacted ACAS to start Early Conciliation that same day and filed her Tribunal claim on 4 February 2021. Mr Michael Holland

[27]Mr Holland worked in the Operations Team at St George’s House. He was on furlough from around the end of April 2020. He received the standard information from ERA. He was a member of the Facebook Group. He looked at that a couple of times a week. He was also involved in chats on the social media group that he had with his team colleagues about protective awards. I accept his evidence that he believed that a protective award was something only available to those earning more than the £538 a week weekly limit on statutory payments. He knew his manager had claimed for a protective award but did not think it applied to him because he earned less than £538 per week. He also understood that the protective award was something only those in teams of more than 20 people could apply for. As his team was smaller than that he did not think he could apply. After seeing Ms Phippen’s post on 3 February 2021 Mr Holland contacted ACAS to start Early Conciliation on 8 February 2021 and filed his Tribunal claim on 9 February 2021. When made redundant Mr Holland had a mortgage and had been working for the first respondent for 12 years. It was therefore a very concerning time. John Bradley

[28]Mr Bradley’s situation was different to his fellow claimants in that he accepted that he was aware of the right to claim a protective award for a failure to consult. He had searched on the internet to find out how to contact ACAS and initiated the early conciliation process on 4 September 2020. The Early Conciliation certificate was issued on 7 September 2020.

[29]Also on 7 September 2020, Mr Bradley was sent a letter from ACAS’s Insolvency Support team noting that it “would appear that your employer has become legally insolvent” and saying that in those circumstances “it is not appropriate for ACAS to get involved and therefore I will take no further action and close this case.”.

[30]The letter does not explain what the effect of ACAS “closing the case” is on a claimant’s ability to present a claim at the Tribunal but goes on to say that the EC certificate has been issued to “confirm that you have complied with the requirement to notify us of your intention to make a claim”. The letter goes on to explain the ability to claim certain moneys from the second respondent. It refers to the Employment Tribunal only in the context of an award for redundancy payment.

[31]The Early Conciliation Certificate itself says that the claimant should keep the certificate securely as “you will need to quote the reference number in any Employment Tribunal application concerning this matter”.

[32]Mr Bradley received ERA’s standard information and there was a lot of toing and froing between him and ERA both in relation to holiday pay and final pay. That was because his pay situation was complicated by an extra responsibility amount he was paid on a monthly basis but which was not recorded by the first respondent as part of his annual salary. The protective award was not raised during those exchanges either by Mr Bradley or ERA.

[33]Mr Bradley did not file his claim until 11 February 2021. That was after he was alerted to Ms Phippen’s post of 3 February 2021 by a colleague via Facebook Messenger. On 10 February 2021 he contacted ACAS by email to ask for an update, noting that colleagues had received notification that their claims had been referred to a judge. ACAS responded by email on the following day to say that when he received the Early Conciliation certificate, Mr Bradley should have filed an ET1. That advice was repeated when Mr Bradley wrote again to ACAS on 11 February 2021 to point out that he had been told that his “case was closed”. Mrs Umelaila Hussain

[34]Mrs Hussain was on maternity leave and was therefore “out of the loop” when it came to conversations that were going on about protective awards. She received the standard ERA information. She was in the Facebook Group and her main point of contact with colleagues was via a WhatsApp group. She was in contact with Miss Gklantzouni (the first claimant). Mrs Hussain was aware from January 2021 that there was something called a “protective award” but understood that this was something which was relevant only to those earning more than the statutory limit of £538 per week. After becoming aware of the message from Ms Phippen she contacted ACAS to start Early Conciliation on 10 February 2021 and filed her Tribunal claim on 11February 2021. Mr Mark Van Leeuwen

[35]Mr Van Leeuwen received the standard ERA information. He joined the Facebook Group on 13 October 2020. He was aware there was something called a protective award but on making enquiries of his former manager understood that this related to those earning more than £538 per week. Mr van Leeuwen also relied on the information provided by ERA which did not mention anything about a protective award. After becoming aware of the post from Ms Phippen he contacted ACAS on 11 February 2021 to start Early Conciliation and filed his Tribunal claim on 19 February 2021. Mr Philip Cooke

[36]On hearing the evidence from Mr Cooke, it became apparent that he had lodged an earlier in time claim at London Central Employment Tribunal under case number 2206487/2020. It appeared that that claim had been struck out on the basis that it duplicated his claim in this case. Since that other claim preceded his claim in this case, I dismissed his claim in this case. His case will be dealt with under the claim he lodged in time at London Central Employment Tribunal (2206487/2020). Discussion and Conclusion

[37]I have dismissed Mr Cooke’s claim and postponed consideration of Ms Dillon’s claim. Of the other claimants who attended to give evidence, I find that their circumstances are essentially the same except for Mr Bradley’s. I deal with his case separately below.

[38]In relation to the other claimants, I find that the position is that they were ignorant of the right to bring a claim for compensation for a failure to consult. Some of the claimants were aware that there was something called a “protective award” from discussion in WhatsApp groups and Facebook groups of former colleagues. I find, however, that those employees believed that a “protective award” was something which employees paid more than £538 per week could bring to claim the difference between that amount and their actual week’s pay when it came to arrears of pay and holiday pay.

[39]I have considered whether in the circumstances they ought to have known of the right to claim a protective award for failure to collectively consult. In other words, were the circumstances such that they were put on notice that there was a potential right about which they needed to make further enquiry. In relation to these claimants I find that the answer is no.

[40]I accept that the right to claim a protective award for a failure to collectively consult is not a widely known right. I find that is particularly the case in workplaces such as the claimants’, which is non-unionised and where no employee representatives were in place. In addition, I take into account in this case that the employer appointed ERA Solutions to tell the claimants what their rights were. I am satisfied that ERA Solutions made no mention of the right to claim a protective award in the information provided to the claimants.

[41]I have considered whether discussion of something called a “protective award” on the WhatsApp and Facebook groups of former employees was sufficient to put these claimants on notice that such a right existed. I find that this was not a case where they ought to have known of the right to claim a protective award, particularly where ERA Solutions, on whom they were relying for information, made no mention of the right to make a claim if there was a failure to consult.

[42]In those circumstances in relation to this group of claimants I find that it was not reasonably practicable for them to have brought their claims in time. I am satisfied that they did bring their claims in such further time as was reasonable i.e. promptly after they became aware of the right to claim (and more specifically of the need for each employee to lodge their own claim) via Ms Phippen’s post in the Facebook Group in February 2021. Their claims will be allowed to proceed. This applies to the cases of Miss Gklantzouni, Mr O’Neill, Mrs Warrington, Mr Holland, Mrs Hussain and Mr van Leeuwen. Mr Bradley

[43]Mr Bradley’s situation is different. He had begun the process of applying for a protective award. He was aware that the right to make such a claim existed. The question is whether the letter from ACAS telling him his case was closed meant it was not reasonably practicable for him to bring his Tribunal claim in time. I do find that Mr Bradley was genuinely confused about ACAS’s role and the significance of the ACAS letter “closing the case”. The question is whether, being aware of his right to bring a claim and having initiated the process of making a claim for it by contacting ACAS he ought reasonably to have known that the next step was to file a Tribunal claim or at least made enquiries to establish what the next steps were.

[44]I note that Mr Bradley had used the internet to find out how to initiate Early Conciliation via ACAS. I find it would have been easy in practice for him to have made further enquiries to establish next steps on receipt of the ACAS certificate. I accept that the letter from ACAS could be better worded. It seems to me, however, that it would be reasonable to expect someone in Mr Bradley’s position to make enquiries about what to do next either of ACAS itself or by visiting the government website for employment tribunals. At the very least, it seems to me he ought to have made enquiries to establish whether he could challenge the decision to “close the case”. It also seems to me that Mr Bradley ought reasonably to have known that ACAS and the Employment Tribunal are separate bodies. It seems to me that he would not have contacted ACAS to initiate early conciliation unless he knew of the right to bring an employment tribunal claim. The wording of the Early Conciliation Certificate also makes clear the distinction between ACAS and the Tribunal, by referring to the need to quote the number “in any Employment Tribunal proceedings concerning the matter”. He ought reasonably to have made enquiries to establish whether the ACAS letter prevented him from filing a Tribunal claim (especially when the certificate suggested it did not prevent him from doing so).

[45]On balance, therefore, and even taking into account that I need to give the relevant legislative section a liberal reading in favour of the claimant, I find it was reasonably practicable for him to have brought his claim in time. He did not do so and so his claim is dismissed. Next Steps

[46]For those claimants whose claim I have allowed to proceed there is an outstanding issue to be decided, namely whether each claimant was employed at an establishment at which it was proposed to make redundant 20 or more employees triggering the entitlement to a protective award.

[47]In relation to the claimants whose claims have been allowed to proceed who worked at St George’s House, it seems to me there is no doubt that that was an establishment at which more than 20 employees were made redundant. In those circumstances it is not necessary for the Tribunal to hold a further preliminary hearing in relation to those claimants. A protective award will be issued shortly in relation to them.

[48]However, in relation to Mr Van Leeuwen, who worked at the Chester branch, a preliminary hearing on the issue of “establishment” will be needed. That hearing will take place on 15 August 2022. Directions for that hearing will be given separately. Employment Judge McDonald Date: 27 July 2022