Mr T Johnson and others v Redeem UK Ltd (in Administration): 2408915/2020 and others

EMPLOYMENT TRIBUNALS

Case No 2408915/2020

Between

Each in personClaimant

Redeem UK Ltd (in Administration)Respondent

Before

Employment Judge Phil Allen

In person for claimant

Not represented for respondent

Date 30 July 2021

JUDGMENT

The Tribunal having heard evidence from most of the claimants in a hearing conducted remotely by CVP technology, the Judgment of the Tribunal is that:

[1]The respondent failed to consult with the claimants 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.

[2]Under Section 189(1)(d), (2), (3) and (4) of the Trade Union and Labour Relations (Consolidation) Act 1992, the Tribunal makes a protective award in respect of each of the claimants, and the respondent is ordered to pay remuneration to each claimant for a protected period of 90 days beginning on 7 July 2020.

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

[4]The respondent breached the contracts of employment of each of the claimants listed in schedule 2 (that is all of them, save for Mr Wolstenholme) by not giving the claimant the period of notice of the termination of their employment to which they were entitled.

[5]The respondent is ordered to pay to each of those claimants (save for Mr Wolstenholme) the amount recorded in the second schedule to this Judgment as damages for breach of contract.

REASONS

[1]All of the claimants claimed a protective award in respect of breach of the collective consultation requirements. Responses were presented to the claims by the respondent, which is in administration, but those response were brief and confirmed that the claimants were dismissed on the dates asserted because the company ceased to trade.

[2]The consent of the administrator had been provided for the stay to be lifted and the claims to proceed.

[3]The hearing was conducted by CVP remote video technology. It was attended by all of the claimants. They each gave evidence under oath, save for Mr Wolstenhlome (who had technical issues which meant that he was only able to attend the hearing briefly and was not able to give evidence under oath).

[4]The Tribunal makes the following findings:a. The respondent carried on business in Macclesfield;

b. There was no trade union recognised for collective bargaining, consultation or negotiation with the workforce;

c. The claimants were first notified that there was any issue in an email on 3 July 2020 and subsequently on 7 July 2020 when they were informed in a conference call that the company had been placed into administration. There was no collective consultation undertaken and the employees were not invited to elect representatives.

d. Each of the claimants were informed that their employment terminated on 7 July 2020 (except for Mr Meakin and Mr Trueman). Approximately 82 employees at the establishment in Macclesfield were dismissed on, or shortly after, that date.The employment of Mr Meakin and Mr Trueman was terminated on 31 July 2020 (which was also the date they were given written notice of termination).

e. The first redundancy at the establishment occurred on 7 July 2020.

[5]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 the 1992 Act. The dismissals were put into effect without any consultation or advance notice.

[6]In these circumstances, the 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 the claimants for the maximum protected period of 90 days commencing on 7 July 2020.

[7]The Claimants also each claimed damages for breach of contract in respect of notice. Each of the claimants was entitled to three months notice of the termination of their employment. No notice was provided. The respondent accordingly breached the contract of employment of each of the claimants when they were dismissed (save as recorded at paragraph 9 below).

[8]The remedy for breach of contract is to put the claimant in the position which they would have been had their contract not been breached. That means that sums earned in mitigation of the loss arising from the breach must be taken into account before an award is made. Earnings and benefits received and payments made by the Secretary of State in respect of notice were established for each of the claimants (save as recorded at paragraph 9 below). As a result, the losses arising from the breach for each of the claimants was as follows:a. For Mr T Johnson, £3,984;

b. For Miss T Cooper, £1,504;

c. For Mr D Trueman, £2,813; and

d. For Mr S Meakin, £3,399.

[9]It was not possible to determine Mr Wolstenholme’s claim for breach of contract as he was not able to attend the hearing and give evidence. Accordingly, his claim for breach of contract (notice) is not determined as part of this Judgment (but the Judgment does confirm that he is entitled to a protective award for failure to consult, as that claim was able to be determined on the evidence heard from the other claimants).

[10]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 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.

[11]The respondent will not be required to make 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. NOTE

[12]These claims all arise from the Administration of the respondent, and the necessary consent to the claims proceeding has been given.

[13]A protective award is a two-stage process. The Tribunal at this stage makes no financial awards, but gives a judgment that each of the listed claimants are entitled to a protective award in the terms set out above. The claimants must then seek payment of their individual award from the respondent (or the Secretary of State), quantifying the same.

[14]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.