Ms J Gabay v Paperchase Products Ltd (in Administration): 2407433/2021
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21 The claim for a protective award in accordance with section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 is unsuccessful.REASONS
[1]The claimant was employed by the respondent from 7 April 2008 until termination of her employment on 28 January 2021.[2]On 29 September 2020 the respondent proposed to dismiss as redundant 10 employees from a group of 27 employees. At least five employees were dismissed between 7 December 2020 to 26 December 2020.[3]During that process the claimant successfully obtained an alternative position and was not made redundant.[4]The respondent went into administration on 5 January 2021. On 28 January 2021 the claimant and 16 of her colleagues were made redundant with immediate effect as a result of the administration of the respondent.[5]Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 states as follows: “(1). Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed Case No: 2407433/2021 2 dismissals or may be affected by measures taken in connection with those dismissals. (1A). The consultation shall begin in good time and in any event –(a) Where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1) at least 45 days; and(b) Otherwise at least 30 days before the first of the dismissals takes effect. (1B) …. (2) …. (3). In determining how many employees an employer is proposing to dismiss as redundant no account should be taken of employees in respect of whose proposed dismissals consultation has already begun.”[6]In the case of UQ v Marclean Technologies SLU (C-300/19) ECJ, the European Court of Justice determined that if, during the reference period, the aggregate number of dismissals reaches the threshold number then the duty to consult will apply in respect of all dismissals during the reference period.[7]The reference period for the claimant’s dismissal was 90 days and began on 28 January 2021.[8]The previous reference period was 90 days and began on 29 September 2020 and ended on 29 December 2020.[9]The duty to consult in accordance with section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 did not apply on 28 January 2021 because the respondent proposed to dismiss less than 20 employees during the reference period.[10]The claimant’s claim for a protective award in accordance with section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 is therefore unsuccessful. Employment Judge Ainscough Date: 29 June 2022 Case No: 2407433/2021 3[1]The Employment Judge considered this claim on the papers pursuant to rule 22. The papers include a bundle, in which at page 32, there is a draft Consent Judgment proposed in January 2022, following discussions between the claimant’s representatives Case No: 2407433/2021 and the Administrators of the respondent , in which the parties proposed to agree a protective award for a period of 56 days, commencing on 28 January 2021, the date on which the claimant’s dismissal took effect.[2]The Tribunal, however, declined to make such a judgment by consent, and hence this was never actioned. Thereafter the respondent was dissolved, and then restored back to the Register of Companies in October 2024.[3]Mr Mensah and Ms Charalambous of counsel have respectively submitted written Submissions and a Skeleton Argument, the latter for the purposes of the hearing listed for 24 October 2025 , which was vacated, as it seemed to the Employment Judge that a rule 22 judgment could now be issued.[4]The claimant’s claim was previously rejected by Employment Judge Ainscough, but her judgment was reconsidered, and revoked. The issue where the Tribunal was not satisfied that the claimant could succeed focused upon the relevant 90 day period over which the number of employees that the respondent proposed to dismiss was to be taken. In essence , the claimant’s case, as advanced by both counsel, based on the ECJ authority of UQ Marclean Technologies SLU (C-300/19) was that the Tribunal should take account of a rolling period of 90 days, including , in this case, the period before the claimant’s dismissal on 28 January 2021. Whilst the previous judgment of the Tribunal does cite that case, the claimant’s case is that it was misapplied. Application was accordingly made for reconsideration of that judgment. As that judgment was revoked (albeit not on that specific ground) , the matter falls to be considered afresh[5]The claimant’s contentions are correct, the Tribunal finds, and on a correct application of UQ Marclean Technologies SLU (C-300/19) the claim succeeds.[6]What, however, was unclear from the Skeleton of Ms Charalambous, were the precise terms of the judgment sought. In para. 38 she states that the claimant “pursues the maximum award in this matter”. That would , of course, be for a period of 90 days. The caselaw makes it clear that , as the award is punitive, that is the correct starting point, and the respondent has not appeared, or made representations, to advance any mitigation to reduce it from that period. The question, however, is when that period starts.[7]As noted above, the parties had previously agreed a potential consent judgment, with a protective award of renumeration for 56 days, starting from 28 January 2021, the date on which the claimant was actually dismissed.[8]The claimant, however, seems to have changed her position , in that she now seeks “a maximum” award, presumably for renumeration for a period of 90 days. That, however, may not be a significant change, as the important question therefore, is when that period should start.[9]The Employment Judge considers that the logic of the claimant’s case dictates that it must be from a date which pre-dates the claimant’s own dismissal. It cannot be for 90 days from that date, but must be from the date that is relied upon by the claimant for the purposes of calculating the number of employees that it was proposed to dismiss. On that basis, as the first of the relevant dismissals took place (from the claimant’s evidence Case No: 2407433/2021 and submissions) on 7 December 2020, that must be the date from which the 90 day period runs for the protective award.[10]The net effect, of course, as the claimant was still employed for the first part of this period, will be that she only will be entitled to remuneration after her employment ended, which will probably equate to the 56 day period that the parties had previously agreed, from the later starting date.[11]The form of the judgment, however, the Employment Judge considers , should reflect this analysis, and he trusts that the parties understand and agree that this is correct.[12]Should that not be the case, application can, of course, be made for reconsideration. Approved by :