Mrs P Albrecht-Moklak and others (see Schedule) v STA Travel Ltd (In Creditors Voluntary Liquidation) and Secretary of State for Business, Energy and Industrial Strategy: 2413632/2020 and others

EMPLOYMENT TRIBUNALS

Case No 2413632/2020

Between

Not required to attendClaimant

STA Travel Ltd (In Creditors Voluntary Liquidation) and Secretary of State for Business, Energy and Industrial StrategyRespondent

Before

Employment Judge McDonald

Not required to attend for claimant

Not represented for respondent

Date 22 September 2021

JUDGMENT

Employment Tribunals Rules of Procedure 2013 – Rule 21 In the absence of a response from the first respondent to the claimants’ claims, and on the information before the Judge, the Judgment of the Tribunal is that:

[1]The first respondent failed to consult with the claimants named in the attached Schedule (“The St George’s House claimants”), being people 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.

[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 St George’s House claimants and the first respondent is ordered to pay remuneration to each of those claimants for a protected period of 90 days beginning on 2 September 2020.

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

REASONS

[1]The 39 claimants in these proceedings claimed a protective award in respect of breach of the collective consultation requirements. A number of the claimants also brought claims relating to unpaid wages, redundancy pay and other payments. The first respondent did not present a response to any of the claims.

[2]The Secretary of State has been joined to the proceedings because of its role as the statutory guarantor.

[3]The claimants in these proceedings were based at two different premises. 35 worked at St George’s House, 56 Peter Street, Manchester, M2 3NQ (“St. George’s House”). The other 4 worked at Unit 6, Barton Arcade, Deansgate, Manchester M3 2BW (“Barton Arcade”).

[4]The Tribunal makes the following findings based upon the claim:a. The first respondent had no trade union recognised for collective bargaining, consultation or negotiation with the workforce. There were no elected representatives;

b. The first respondent’s business ceased trading on 2 September 2020. The first of the redundancies took effect on that date. There was no consultation with the claimants;

c. The first respondent entered into creditors voluntary liquidation on 6 October 2020;

d. The respondent employed over 20 employees at St.George’s House. The total number employed at that establishment was in the region of 100. All of those employees were dismissed on 2 September 2020.

e. The respondent employed 4-5 employees (but in any event fewer than 20 employees) at Barton Arcade. All of those employees were dismissed on 2 September 2020.

[5]The requirement to consult under s.188 of the 1992 applies where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less.

[6]There is an issue as to whether Barton Arcade was an establishment in its own right or formed part of a larger “virtual” establishment consisting of more than 20 employees affected by the redundancies. The Tribunal can only determine that issue after hearing evidence. A preliminary hearing will be listed to determine that issue. However, the Tribunal is satisfied that the obligation to consult did apply in relation to St George’s House. This judgment relates to the 35 St George’s House claimants not the 4 Barton Arcade claimants.

[7]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 information being provided in writing in advance.

[8]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 St George’s House claimants for the maximum protected period of 90 days commencing on 2 September 2020.

[9]The first 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 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 every employee to whom the award relates; and

b. the date of termination of the employment of each such employee.

[10]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 respondent.

[11]This Judgment applies to the St George’s House claimants’ claims for protective awards only. The Tribunal will shortly be writing to the St George’s House claimants about their other claims.

[12]The Tribunal will shortly also be writing imminently to the Barton Arcade claimants to give details of the preliminary hearing relating to their claims for a protective award and the steps needed to prepare for it. NOTE

[13]A protective award is a two-stage process. The Tribunal at this stage makes no financial award, but gives a judgment that the St George’s House claimants are entitled to a protective award in the terms set out above. Those claimants must each 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.