NASUWT Trade Union and Others v Heathland School Ltd (In Administration) and Grant Thornton UK LLP: 2404710/2022 and Others

EMPLOYMENT TRIBUNALS

Case No 2404710/2022

Between

NASUWT Trade Union and OthersClaimant

Heathland School Ltd (In Administration) and Grant Thornton UK LLPRespondent

Date 21 March 2023

JUDGMENT

Employment Tribunals Rules of Procedure 2013 – Rule 21 The Judgment of the Tribunal is that:

[1]The first respondent failed to comply with section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 as it did not consult with the trade union claimant (the first claimant above) about proposals to dismiss, or measures taken in connection with the dismissal of, twenty or more employees, where the trade union claimant was recognised by the first respondent in respect of professional employees.

[2]Under Section 189(1)(c), (2), (3) and (4) of the Trade Union and Labour Relations (Consolidation) Act 1992, the Tribunal makes a protective award in respect of each employee for which the trade union claimant was recognised, of 90 days pay beginning on 1 March 2022.

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

[4]The claims brought for redundancy payments are dismissed on withdrawal by the individual claimants.

[5]The claims against the second respondent are dismissed.

REASONS

[1]The claimants claimed a protective award in respect of breach of the collective consultation requirements by the first respondent. No response was presented to the claim by the respondents. The second respondent is the administrator for the first respondent.

[2]The trade union claimant (NASUWT) was the recognised trade union for collective consultation purposes for the professional employees of the first respondent and, accordingly, under section 189(1)(c) of the Trade Union & Labour Relations (Consolidation) Act 1992 the trade union claimant was the correct claimant able to bring a complaint about a failure to inform and consult.

[3]Based upon the information provided, the Tribunal makes the following findings:a. The first respondent appointed administrators and all relevant employees were dismissed by reason of redundancy on or around 1 March 2022.

b. The trade union claimant was the trade union recognised for collective bargaining, consultation or negotiation for professional employees within the workforce, including for redundancy consultation purposes;

c. There was no consultation with the trade union claimant;

d. Forty four employees at the establishment were dismissed on, or around, the same date.

[4]There was no proper consultation with the trade union claimant.

[5]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 those for whom the trade union claimant was recognised for the maximum protected period of 90 days commencing on 1 March 2022.

[6]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; 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 first respondent.

[8]In their email of the 28 February 2023, the claimants’ representative confirmed that the individual claimants were not claiming a redundancy payment and the ticked box was an error.

[9]No claim against the second respondent has been identified or pursued.

[10]In this Judgment, the trade union claimant means the NASUWT. The individual claimants means the other claimants other than the NASUWT. NOTE

[11]No response to the claim has been received, and the claim therefore succeeds.

[12]A protective award is a two-stage process. The Tribunal at this stage makes no financial award, but gives a judgment that those for whom the trade union claimant was recognised are entitled to a protective award in the terms set out above. The individuals must then seek payment of their individual award from the first respondent, quantifying the same.

[13]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.