Mrs C Noble and others v Rivington Biscuits Ltd and others: 2401822/2017
EMPLOYMENT TRIBUNALS
Case No 2401822/2017
Between
Mrs C Noble and others (see schedule)Claimant1) Rivington Biscuits Ltd (in Administration)RespondentDate 29 August 2017
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The judgment of the tribunal is that the claim is well-founded in that the first respondent failed to comply with its statutory collective consultation obligations under Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 before proposed redundancy dismissals took effect at its establishment at Ormsley Close, Hindley Industrial Estate, Wigan, Greater Manchester, WN2 4HR on 13 December 2016. The tribunal makes a protective award against the first respondent in respect of all claimants named in the schedule dismissed by reason of redundancy at that establishment and the respondent is ordered to pay remuneration to such claimants for a protected period of 90 days beginning on 13 December 2016.[2]The first and third respondents are the same company which is in administration and the administrators’ consent to the commencement of the proceedings has been given.[3]All monetary claims other than for a protective award are dismissed upon withdrawal by the claimants.[4]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply to these protective awards.[5]No order for fees as costs under Rule 75(1)(b) is made, although the claimants have paid fees in connection with this claim. In R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51 the Supreme Court decided that it was unlawful for Her Majesty’s Courts and Tribunals Service (HMCTS) to charge fees of this nature. HMCTS has undertaken to repay such fees. In these circumstances, I shall draw to the attention of HMCTS that this is a case in which fees have been paid and are therefore to be refunded to the claimant. The details of the repayment scheme are a matter for HMCTS.
REASONS
[1]By a claim form presented on 10 April 2017, the claimants each claimed a protective award in respect of their dismissals for redundancy on or after 13 December 2016 when the respondent's business ceased trading and went into administration.[2]No response was presented but the respondent's administrators gave consent by email dated 10 March 2017 for the proceedings to be brought. They also wrote to the Tribunal on 20 24 May 2017, explaining briefly their appointment as administrators on 13 December 2016. Since the claim was not resisted, no "special circumstances defence" at Section 188(7) TULRCA was pursued and this Judgment is made pursuant to Rule 21 without hearing evidence.[3]From the information provided, the Tribunal makes the following findings. The first respondent was a biscuit manufacturer with its establishment in Hindley where approximately 128 people worked. The administrators were appointed on 13 December 2016 since it had run out of raw materials and had no funds to pay wages; although it carried on employing some workers until it finally ceased trading at about the end of February 2017, approximately 100 workers were dismissed on 13 December 2016 with no warning or consultation. There was no independent trade union recognised for collective bargaining and no employee representatives for redundancy consultation. No consultation within the meaning of Section 188(2) and (4) was carried out before the first redundancy dismissals were put into effect.[4]In these circumstances, the respondent is in breach of the duty under Section 188 and the Tribunal makes an award in favour of all claimants named in the schedule who were dismissed as redundant on or after 13 December 2016 due to the cessation of business for the maximum protected period of 90 days commencing on 13 December 2016.[5]By letter dated 9 August 2017, the claimants withdrew all monetary claims other than the protective award claims.[6]Recoupment The first respondent and its administrators are 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 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 respondent.