Mrs P Moors v Testerworld Ltd (in Administration) and Secretary of State for Business and Trade: 2408415/2022
EMPLOYMENT TRIBUNALS
Case No 2408415/2022
Between
Mrs P MoorsClaimantTesterworld Limited (in administration) Rule 96 party: Secretary of State for Business and TradeRespondentDate 9 August 2024
JUDGMENT
Employment Tribunals Rules of Procedure 2013 – Rule 21[1]The claimant’s claim that the respondent failed to comply with the requirements of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 in respect of her dismissal is well founded.[2]The Tribunal orders the respondent, by way of protective award under section 189(3) of the 1992 Act, to pay to the claimant a payment equivalent to remuneration for the period of 90 days beginning on 29 July 2022. Recoupment[3]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply to this award. The protected period is the period of 90 days beginning on 29 July 2022.
REASONS
[1]The claimant has made a complaint under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 on the ground that the respondent failed to comply with a requirement of section 188 in respect of his or her dismissal. The respondent company’s administrators have given consent for the claim to continue.[2]The respondent has not presented a response to the claim.[3]I have decided that a determination can properly be made of that complaint on the available material.[4]On the available material I am satisfied of the following.a. As at 9 May 2022 the respondent was proposing to dismiss as redundant, within a period of 90 days or less, 20 or more employees who were assigned to carry out their duties at the respondent’s depot at Trafford Park.b. The claimant was an employee of the respondent who may be affected by the proposed dismissals. The claimant was assigned to carry out their duties at the respondent’s depot at Trafford Park. The claimant was dismissed as redundant on 29 July 2022.c. For the purposes of section 188 Trade Union and Labour Relations (Consolidation) Act 1992, the respondent’s depot at Trafford Park was either an establishment in itself or it was part of a larger unit constituting an establishment. In order to determine the claimant’s claim it is unnecessary for me to decide which of those two possibilities was in fact the case.d. The respondent was required to consult about the dismissals all the persons who were appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals: section 188 Trade Union and Labour Relations (Consolidation) Act 1992. For the purposes of the consultation, the respondent was required to disclose in writing to the appropriate representatives the information set out at section 188(4) of the Act.e. The claimant was not an employee of a description in respect of which an independent trade union was recognised by the respondent.f. There were no employee representatives appointed or elected by the affected employees otherwise than for the purposes of section 188, who had authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf.g. There were no employee representatives elected by the affected employees, for the purposes of section 188, in an election satisfying the requirements of section 188A(1). The respondent did not invite the claimant, as an affected employee, to elect such representatives. The respondent did not consult the claimant individually about the proposed redundancy.h. The claimant is entitled to make a complaint under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 on the ground that the respondent failed to comply with a requirement of section 188 in respect of his or her dismissal.i. The respondent failed to comply with the requirements of section 188 in respect of the claimant’s dismissal.j. The respondent has not shown that there were special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of section 188.k. The complaint was presented to the tribunal within the period of three months beginning with the date on which the claimant’s dismissal took effect (taking into account section 292A).[5]The claimant’s complaint under s189 is well founded.[6]Section 189 provides as follows: (2) If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award. (3)A protective award is an award in respect of one or more descriptions of employees— (a)who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and (b)in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188, ordering the employer to pay remuneration for the protected period. (4)The protected period— (a)begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and (b)is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with any requirement of section 188;but shall not exceed 90 days[7]I have determined that it is appropriate to make a protective award under section 189 in respect of the claimant.[8]In determining the length of the protected period I have had regard to the seriousness of the employer’s default in complying with the requirements of section 188 and borne in mind guidance given in the case of GMB v Susie Radin Ltd [2004] EWCA Civ 180, [2004] IRLR 400.[9]I am satisfied on the material available that this a case where there has been no consultation at all in relation to the claimant’s proposed dismissal and there are no mitigating circumstances. Therefore, it is just and equitable that the length of the protected period should be the maximum of 90 days.[10]The reference in s189(4) to ‘the first of the dismissals to which the complaint relates’ is a reference to the first of the dismissals of which complaint can properly be made under section 189: E Green & Son (Castings) Ltd v Association of Scientific, Technical & Managerial Staffs [1984] IRLR 135; approved by TGWU v Ledbury Preserves [1986] IRLR 494. A complaint made by an individual under section 189 is a complaint that the respondent failed to comply with its obligations under section 188 in respect of the claimant’s own dismissal. That is the only dismissal of which each claimant can properly complain; a claimant can obtain a protective award only for him- or herself: Independent Insurance Company Ltd v Aspinall [2011] IRLR 723. It follows that, for the purposes of section 189(4), there is only one dismissal to which the claimant’s complaint relates: the claimant’s own. Therefore, the protected period begins with the date the claimant’s own dismissal took effect. Case Number: 2408415/2022 EMPLOYMENT TRIBUNALS Claimant: Mrs Moors Respondent: Testerworld Limited Rule 96 party: Secretary of State for Business and Trade 1. The claim for breach of contract (notice pay) against the Respondent is struck out on the ground that it has not been actively pursued.[1]By an Order made on 26 July 2024 I notified the claimant that I was considering whether to strike out this claim for the reasons stated in my Order. I said that if the claimant wishes to give reasons why the claim against the Respondent should not be struck out, she must do so in writing by 8 August 2024.[2]The claimant emailed the Tribunal on 5 August 2024. She says she believes she has claimed all the money that was due. She says ‘If this is not the case please advise as very confused.’ The Tribunal cannot advise the claimant as to what she may or may not be able to claim.[3]The claimant did not say her claim should not be struck out or request a hearing. If the claimant has received everything that she believes was due then she appears not to be pursuing the claim referred to above in these proceedings. In any event, she has not actively pursued the claim and has not given adequate reasons why the claim should not be struck out. The complaint referred to above is therefore struck out.