Mr S Burgess v Clever Company Ltd (in Administration) and The Secretary of State for Business, Energy and Industrial Strategy: 2409380/2022

EMPLOYMENT TRIBUNALS
Case No 2409380/2022
Between
Mr S BurgessClaimantClever Company Ltd (in Administration) and The Secretary of State for Business, Energy and Industrial StrategyRespondent
Before
Employment Judge GannerDate 28 March 2023

JUDGMENT

The first respondent, not having presented a response to the claims, and the Secretary of State having made submissions as an interested party, and having heard evidence from the claimant, the judgment of the Tribunal is that:[1]The claimant’s complaints under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) of a failure by the first respondent to comply with the requirements of section 188 of the 1992 Act are well-founded.[2]The Tribunal orders the first respondent, by way of a 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 31 October 2022 in the sum of £7416.90.[3]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply to this award.

REASONS

[1]Following a period of ACAS EC conciliation, by an ET1 claim form presented on 22 November 2022 the claimant contended that the respondent had failed to comply with its duty to consult and sought a protective award under section 189 TULRCA.[2]By a letter dated 13 December 2022 the joint administrators gave consent to the claimant bringing proceedings before the Employment Tribunal.[3]No ET3 response has been received in respect of this claim. It therefore follows the respondent company is debarred from defending the claim for the purpose of rule 21(3) of the Employment Tribunals Rules of Procedure 2013. Evidence / Facts[4]The claimant gave evidence to me that he was employed by the respondent from 1 July 2019 to 31 October 2022 as a Finance Supervisor. He worked 38 hours per week and had an annual salary of £30,000.[5]There was no union recognised by the respondent for collective bargaining purposes. There was no attempt to arrange employee representative elections and no consultation took place at any time.[6]On 31 October 2022, without any prior warning, consultation or discussion, the claimant was told the company had ceased trading. He was therefore without a job and redundant. The claimant said that about 40 employees were made redundant on that day.[7]I accepted the unchallenged evidence given by the claimant which was corroborated by documentary evidence in his bundle.

Conclusions

[8]There has been a failure to engage in discussions and consultations with either trade unions or the claimant himself. No employee representatives were appointed or elected. In these circumstances the first respondent is in clear breach of its duty under section 188 of the 1992 Act.[9]A protective award is punitive and not compensatory. Where there has been no consultation at all it is appropriate to start at the maximum period of 90 days; see Susie Radin v GMB [2004] 1 IRLR 400.[10]No mitigating features have been presented and I consider there is no basis for reducing the 90-day period in view of the circumstances I have found.[11]In these circumstances I consider he appropriate period for the protective award is 90 days. The respondent must pay 90 days’ gross pay to the claimant. Calculations[12]The claimant is owed £7416.90 for the protective award (£82.41 x 90 days gross daily wages).[13]The first respondent is advised of the provisions of regulation 6 of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 such that within ten 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:(a) The name, address and national insurance number of the claimant to whom the award relates; and(b) The date of termination of the employment of the claimant.[14]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.