Mr P Jamieson and Others v Engenera Renewables Ltd – in administration and Secretary of State for Trade and Business: 2501309/2024 and Others
JUDGMENT
[1]The claimants’ complaints for section 189(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) are well founded.[2]The Tribunal Orders the second respondent to pay a protective award to all employees set out in the Schedule attached hereto who were based at Gateway House, Newburn Riverside, Newcastle upon Tyne, NE15 8NE who were dismissed by reason of redundancy on or after 5 March 2024, for a protected period of 56 days.[3]The Recoupment (Protection from Employment) Regulations apply to this award.REASONS
[1]The Tribunal was provided with a bundle of documents by the claimants which largely consisted of the pleadings, order and correspondence with the Tribunal. Witness statements which were all in a proforma format for all of the claimants. 10.5 Reserved judgment with reasons – rule 61 1 March 2017 The Tribunal was not provided with any documents dealing with the administration of the first respondent including any correspondence with the administrators around the time that the decision was made to put the first respondent into liquidation. Further, the Tribunal was not provided with any contracts of employment or employment documentation for any of the claimants in this case.[2]The Tribunal heard oral evidence from Mr Glendinning, director of the first respondent company, Mr M Roddam and Mr L Lupo; none of whose witness statements dealt with the circumstances around which the company went into administration, nor did their statements provide any evidence about the employment status and location of any individual claimants.The Law
[3]Section 188 of Trade Union and Labour Relations Consolidation Act 1992 (TULRCA) sets out the duty of an employer to consult. It states that where an employee is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days, the employer must consult about the dismissals with appropriate representatives of any employees who may be affected. It sets out details of how that consultation and information should be provided to employees and any representatives.[4]Section 188 also states that, if in any case, there are special circumstances which render it not reasonably practicable for the employer to comply with the requirement, the employer shall take all reasonable steps towards complying with that requirement as are reasonably practicable in those circumstances.[5]Section 188A TULRCA sets out the requirements for the selection of employee representatives if there is no trade union or elected representatives.[6]Section 189 TULRCA provides that, where an employer has failed to comply with the requirement under section 188 or section 188A a complaint may be presented to an Employment Tribunal for a protected award.[7]Section 182-183 and 184 deal with the employee’s rights on insolvency including what sums are payable by the Secretary of State including for a protective award which is limited to eight weeks pay.The Issues
[8]The issues which the Tribunal had to consider were as follows: - 8.1.1. Was there a redundancy situation? 8.1.2. Was there a requirement to consult the employees? 8.1.3. Was there an establishment where there were more than 20 employees at one establishment who were being dismissed or proposed to being dismissed by reason of redundancy over a period of 90 days? 8.1.4. If so was there a trade union or elected representatives? 8.1.5. If not, did the respondent consult with the employees or elected representatives? 8.1.6. If not, what is the protected period and what employees are affected 8.1.7. Should any award be made for a protective award? Findings of Facts 10.5 Reserved judgment with reasons – rule 61 2 March 2017[9]The respondent was an energy renewables company based in Gateshead. The address for the company where the employees worked in the ET1 was stated to be[17]Queens Lane, Newcastle. However, all three claimants gave evidence that they were in fact based at Gateway House at Newburn Riverside in Newcastle upon Tyne as were all the other employees except for those referred to below. It appears that the address which was referenced in the ET1 is the address for the registered office where the accountants for the first respondent company were based and not the address where the employees worked.10. In his oral evidence to the Tribunal. Mr Glendinning said that Mr Jamie Morrison was based in Scotland and that Mr Murray was based in the south of England. Mr Roddam suggested that the latter worked a number of days in the office albeit that contradicts Mr Murray’s witness statement in which suggests that he was working in the office for all five days.11. Mr Glendinning is a director of the first respondent company. In his evidence he said that the three other directors were Mr Morrison, Mr Waugh and Mr Lawson, the latter who has not brought a claim to this Tribunal.12. In his evidence to the Tribunal, Mr Glendinning suggested that he was an employee of the first respondent company, but he has not produced any evidence in support of that contention to this Tribunal.13. Mr Glendinning said in his evidence that a decision was made by the four directors to put the first respondent company into administration. He did not suggest that there had been any consultation with the employees about that decision although he suggested that the employees were aware that the company was in a difficult financial position. The problems appeared largely to relate to a particular client.14. In his evidence Mr Glendinning also said that the first respondent company had been working for some months with the administrators from around the end of November 2023 with a view to trying to obtain some finance to keep the company continuing. He said that the decision was then made in late February 2024 to put the first respondent company into administration. The date he gave was 24 February although Mr Lupo said it was 29 February.15. In his evidence Mr Glendinning said that even at that stage the administrators were still trying to keep the first respondent company going and looking to try and sell it as an ongoing concern.16. On 5 March 2025 Mr Westwood was made redundant. It appears that the reason why he was selected for redundancy at that stage was because there had already been some consultation with him about a change to his role which was around redeployment of his role. 17. Mr Glendinning and Mr Lupo both said in their evidence that the first respondent company and the administrators were continuing to try and look at opportunities to sell the company as a going concern at that point. Mr Lupo said there were regular meetings.[18]Mr Lupo said that there was a meeting arranged for 8 March which he understood at that stage was simply intended to be an update meeting. However, he said that on that date the administrators indicated that the proposed buyer had pulled out and that that they were looking at making redundancies. Mr Lupo said that 18 staff were dismissed on that date, namely 8 March 2024. 10.5 Reserved judgment with reasons – rule 61 3 March 2017[19]It appears that the administrators retained some of the management team for a period to try and see if anything else could be done, but they were then all it appears dismissed on 13 March for redundancy.[20]All three claimants who gave evidence indicated that there was no trade union operating on site and no elected representatives nor were any elected representatives appointed.[21]Twenty three claimants have presented claims to this Tribunal. Three of the claimants gave evidence. The witness statements from all of the claimants are in identical terms.[22]Mr Lupo in his evidence said there was another employee Mr Jeremiah Idodo who worked for him with whom the other employees had lost contact but who was also dismissed on 8 March.[23]The evidence provided in these proceedings was poor and contradictory in terms of firstly the documentary evidence in the bundle suggesting not only a different address to where the employees worked but also different numbers of employees being dismissed on different dates with subsequent evidence being produced by way of schedules which contradicted what was set out in the original ET1. Furthermore the oral evidence by the claimants was also confusing and contradictory at times.[24]The ET1 says that one employee was dismissed on 5 March, 18 on 8 March and four on 13 March. The further information presented by the claimants’ representative seeking leave to amend the ET1 suggested different dates and different number of employees for a period from 15 March covering the 8th, 13th, 15th and 20th March. Mr Glendinning’s evidence suggested that dismissals went on up to 20 March but Mr Lupo’s evidence, which the Tribunal prefers because it was much clearer and more consistent was that the last redundancy occurred on 13 March 2024.Conclusions
[25]As indicated above the documentary and oral evidence in this case is confusing and contradictory.[26]The Tribunal had to consider which claimants were in fact employees and which employees were based at the establishment namely Gateway House.[27]The Tribunal prefer Mr Lupo’s evidence about the dates and numbers of employees who were dismissed which was clearer and largely corresponds with the original ET1. The Tribunal also accept that Mr Jeremiah Idodo, although not a claimant, was an employee.[28]The Tribunal reminded itself that the burden of proof is on the claimants to prove that:- firstly, they are employees; secondly the numbers involved and numbers based at the establishment. As indicated above little or no relevant evidence was provided in the bundle or contained within the witness statements.[29]This Tribunal does not accept that Mr Glendinning or any of the other directors namely Mr Waugh were employees. Mr Glendinning said that Mr Waugh was one of the directors who was making the decisions about calling in the administrators and putting the company into administration. Neither of them have produced any evidence showing that they were employees. Therefore their claims fail. Mr Morrison was also described by Mr Glendinning as a director. Again no documentary or oral evidence was produced showing that he was an employee. 10.5 Reserved judgment with reasons – rule 61 4 March 2017[30]Furthermore, Mr Morrison was according to Mr Glendinning’s evidence not based at the establishment so his claim fails as well. One other employee, Mr Murray was also based on Mr Glendinning’s evidence not based at the establishment at Gateway House. He was based in the South of England and even on Mr Roddam’s evidence was not based was only there a couple of day , which completely contradicts Mr Murray’s written statement where he suggests he was based there 5 days. However, the Tribunal accepts Mr Lupo’s evidence that there was one other employee who is not a party to these proceedings which brings the total number of employees up to twenty based at the establishment who were dismissed by reason of redundancy in March 2025.[31]The Tribunal accepts that there were no trade union or employee representatives. The Tribunal also accept that there was no attempt to appoint employee representatives. Finally, no information was provided to employees and there was no consultation with them about the redundancy situation.[32]On that basis this Tribunal considers that there was one establishment where 20 employees were dismissed by reason of redundancy. There was no consultation with them. Those claimants set out in the schedule attached hereto are entitled to a protective award. Approved by