Mr T Broome and others (see schedule attached) v M & A Pharmachem Ltd (in administration): 2403964/2022 and others
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21 The Judgment of the Tribunal is that:[1]The claims of each of the claimants in the attached schedule that the respondent failed to comply with the section188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) is well founded.[2]The respondent failed to consult with each of the claimants in the attached schedule as persons who may be affected by proposals to dismiss, or measures taken in connection with the dismissal of twenty or more employees, in breach of section188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”)[3]Under Section 189(1)(d), (2), (3) and (4) of TULRCA the Tribunal makes a protective award in respect of each of the claimants name din the schedule and the respondent is ordered to pay remuneration to those claimants for a protected period of 90 days beginning on 27 January 2022.[4]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply to this award.REASONS
[1]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.[2]The Tribunal makes the following findings based upon the claim:a. The respondent carried on business in Westhoughton, Bolton. There was no trade union recognised for collective bargaining, consultation or negotiation in respect of the claimants named in the schedule although there were collective consultation arrangements in place for other employees at the establishment.b. The claimants were advised that the respondent had been placed into administration on 27 January 2022 and all the claimants were either told that they were or would be deemed to be redundant from date. They were dismissed with immediate effect and there was no consultation with the claimants;c. The respondent employed approximately 93 employees at the establishment, all of whom were dismissed on, or around, the same date.d. 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.[3]There was no proper warning or notice given to, or consultation with, the workforce. No employee representatives had been elected or appointed in respect of the claimants named in the schedule for any such consultation within Section 188A of TULRCA. The dismissals were put into effect without any consultation or advance notice.[4]In these circumstances, the respondent was in breach of the duty under Section 188 of TULRCA and the Tribunal makes an award under Section 189 in favour of the claimant for the maximum protected period of 90 days commencing on 27 January 2022.[5]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; andb. the date of termination of the employment of each such employee.c. 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. NOTE[1]No response to the claim has been received, and the claim therefore succeeds.[2]A protective award is a two-stage process. 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.[3]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 TULRCA for payment of the award.