G Tynemouth and others v Lagan Construction Group: 2500639/2018
EMPLOYMENT TRIBUNALS
Case No 2500639/2018, 2500646/2018, 2500651/2018, 2500663/2018, 2500666/2018, 2500672/2018, 2500675/2018, 2500742/2018, 2500820/2018, 2501013/2018
Between
G Tynemouth and othersClaimantLagan Construction GroupRespondent
Before
Employment Judge O’DempseyNot represented for respondentDate 21 September 2018
JUDGMENT
[1]The complaint that the respondent failed to comply with the requirements of section 188 and or 188A Trade Union and Labour. Relations (Consolidation) Act 1992 is well founded in the cases: 2500646/2018, 2500651/2018, 2500663/2018, 2500666/2018, 2500672/2018, 2500675/2018, 2500742/2018, 2500820/2018, 2501013/2018.[2]I make a protective award in respect of the employees of the respondent dismissed on 8th March 2018 from the respondent’s A19 site. This is the description to which the award relates.[3]The respondent is ordered to pay remuneration calculated in accordance with section 190 of the Trade Union and Labour Relations (Consolidation) Act 1992 for the protected period to the individual claimant in each case.[4]The protected period is from 8 March 2018 to 6th June 2018 (being 90 days).[5]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 apply. Regulation 6 imposes on the respondent a duty to provide information to the Secretary of State. Regulation 7 postpones this award in order to enable the Secretary of State to service a recoupment notice under Regulation[8]The full effect of Regulations 6,7, and 8 is set out in the Annexe to this Judgment. 6. In the following cases the complaint that the respondent failed to comply with the requirements of sections 188 and or 188A Trade Union and Labour. Relations Case No: 2500639/2018 and others (Consolidation) Act 1992 is not well founded: 2500639/2018, 2501001/2018, 2501018/2018, 2501083/2018, 2501266/2018. 7. In respect of the following claims relating to redundancy payments, pay in lieu of notice and or arrears of wages or expenses, I make the following direction: The claims are stayed.[2]Unless, on or before 4pm on 31 October 2018, the claimant writes to the tribunal and other parties stating that he or she wishes the stay to be lifted and the claim(s) to be listed for a hearing to determine these claim, the claims are dismissed.[8]The claimants affected by this direction are in case numbers: 2500646/2018 2501018/2018 2501266/2018[9]Finally case number 2500679/2018 is accepted by the claimant to be a duplicate of case number 2500672. It is accordingly dismissed without prejudice to the rights of the claimant to pursue the claims under 2500672.
REASONS
JUDGMENT having been sent to the parties on 22 August 2018 and reasons having been sought, I give the following reasons for that judgment[1]In these cases I gave the judgment that the complaints that the respondent failed to comply with the requirements of section 188 and or 188A Trade Union and Labour Relations (Consolidation) Act 1992 were well founded in the cases: 2500646/2018, 2500651/2018, 2500663/2018, 2500666/2018, 2500672/2018, 2500675/2018, 2500742/2018, 2500820/2018, 2501013/2018.[2]I accordingly made a protective award in respect of the employees of the respondent dismissed on 8th March 2018 from the respondent’s A19 site. This is the description to which the award relates. I ordered the respondent to pay remuneration calculated in accordance with section 190 of the Trade Union and Labour Relations (Consolidation) Act 1992 for the protected period to the individual claimant in each case.[3]The protected period is from 8 March 2018 to 6th June 2018 (being 90 days). Case No: 2500639/2018 and others[4]However in the following cases the complaint that the respondent failed to comply with the requirements of sections 188 and or 188A Trade Union and Labour Relations (Consolidation) Act 1992 is not well founded: 2500639/2018, 2501001/2018, 2501018/2018, 2501083/2018, 2501266/2018.[5]Case number 2500679/2018 had been accepted by the claimant to be a duplicate of case number 2500672 and was dismissed without prejudice to the rights of the claimant to pursue the claims under 2500672.[6]In respect of these claims I made my findings of fact, based on the evidence which I heard from those claimants who did attend the hearing. I heard evidence from Ms Galligan in relation to the common points raised in these cases. In particular she did her best to identify those who were employed at the A19 site. This was the establishment employing 20 or more employees, in relation to which there was a duty on the Respondent to consult under section 188 of the TULRCA 1992. On the evidence before me I was not able to identify another establishment at which 20 or more employees were so proposed for dismissal as redundant.[7]I find that in the cases of 2500646/2018, 2500651/2018, 2500663/2018, 2500666/2018, 2500672/2018, 2500675/2018, 2500742/2018, 2500820/2018, 2501013/2018, all of the claimants were employed at the A19 Site, which was an establishment distinct from the establishments at which the other claimants worked. It had sufficient coherence and managerial structure to warrant being called an establishment for the purposes of section 188.[8]In the other claims, the employees were employed but at different establishments, and I have been provided with insufficient evidence to conclude that it was likely that at any of those establishments there was a proposal to dismiss 20 or more employees. I have noted the contents of their ET1s which was the information I had before me. I make the following findings:a. 2500639/2018, Mr Tynemouth, was not identified in the evidence before me as a person who worked at the A19 site. He gave the address of the Respondent, but gave no separate address as a place of work on his ET1 form.b. 2501001/2018, Mr Hepburn was not identified in evidence as a person who worked at the A19 site. It appears from his ET1 that his establishment was the Teeside Biomass site.c. 2501018/2018, Ms March was not identified in evidence as a person whose establishment was the A19 site. From her ET1 it appears that her establishment was the Lagan Construction Group Huntsman Drive establishment.d. 2501083/2018, Ms Wardingham, was not identified in evidence as a person whose establishment was the A19 site. From her ET1 it appears that her establishment was the Teeside Biomass site.e. 2501266/2018, Mr Thompson, was not identified in evidence as someone who worked from the A19 site. Case No: 2500639/2018 and others
findings:
[9]In order to succeed in this claim, a claimant must show, by evidence of this fact, that they were employed with others at "one establishment" at which there was a proposal to dismiss 20 or more persons.[10]Several of the claimants did not attend the hearing of this matter and I was unable to determine, on the basis of the evidence before me, that they were employed at one establishment with the appropriate number of other persons. This was despite the evidence from Ms Galligan.[11]The position of the unsuccessful claimants appears to me to be quite different to that of the successful claimants as the latter appear to have been employed at different places about which I had no evidence put before me and could not conclude that they were likely to have been establishments where there was a proposal to dismiss as redundant 20 or more employees as redundant. No duty to consult under the section 188 arises in relation to the establishment at which they worked.[12]It is for the claimant to prove the establishment at which he or she worked, by evidence. The claims which have not been successful failed because I could not conclude that there was a proposal to dismiss 20 or more employees at their establishment within a period of 90 days. The relevant claimants did not attend the hearing and therefore did not produce any evidence to show that they were employed at the same establishment as the other claimants whose claims succeed. Doing the best I could I considered the place that was given on the ET1, if any, as the establishment from which the relevant claimant worked, and as the appropriate “establishment’ for the purposes of the section.[13]In those circumstances their claims for an award under section 189 of the trade union and Labour relations consolidation 1992 must fail. EMPLOYMENT JUDGE O’DEMPSEY