Mr M Byrne and others v Kenyon Haulage Ltd (in Administration) and the Secretary of State for Business and Trade: 2406398/2023 and others
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21 The Judgment of the Tribunal is that:[1]The name of the Second Respondent is amended to that shown above. The Second Respondent is a statutory guarantor pursuant to part XII of the Employment Rights Act 1996.[2]The First Respondent failed to consult with the each of the claimant named 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 section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”).[3]Under Section 189(1)(d), (2), (3) and (4) of TULCRA the Tribunal makes a protective award in respect of each of the claimants, and the First Respondent is ordered to pay remuneration to the claimants for a protected period of 90 days beginning on 20 March 2023.[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 First Respondent.[2]The Second Respondent neither accepts nor resists the claims but made representations as the statutory guarantor which have been considered by the employment judge.[3]Based on the information available to the employmentjudge on the file the Tribunal makes the following findings:
[4]The First Respondent carried on business in Thornley Avenue Blackburn. There was no trade union recognised for collective bargaining, consultation or negotiation with the claimants nor were there any elected employee representative.[5]The First Respondent was placed into administration on 20 March 2023 and the claimants were dismissed with immediate effect on that date.[6]The respondent employed approximately 97 employees and 90 were summarily dismissed on, or around, the same date when the administrators were appointed.[7]All of the claimants were employed at the same establishment (the main site above) and more than 20 employees were dismissed as redundant at the establishment.[8]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 TULCRA. The dismissals were put into effect without any consultation or advance notice.[9]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 each of the claimants for the maximum protected period of 90 days commencing on 20 March 2023.[10]The First R espondent 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: i. the name, address and national insurance number of every employee to whom the award relates; and ii. the date of termination of the employment of each such employee. iii. 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[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 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.[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 TULRCA for payment of the award.