Mr E Chaplin v Short Richardson and Forth Ltd (in Voluntary Liquidation): 2502519/2022
JUDGMENT
ON LIABILITY Employment Tribunals Rules of Procedure 2013 – Rule 21 The Judgment of the Employment Tribunal is as follows:[1]The claimant’s claim under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”) of a failure by the respondent to comply with the requirements of section 188 of the 1992 Act is not well-founded and is dismissed.[2]No award is made in respect of pension contributions.REASONS
[1]The claimant submitted his ET1 form to the Employment Tribunal on 31 December 2022. A copy of the claim form was forwarded to the respondent at their registered office address by the Tribunal on 18 January 2023 and the respondent had until 15 February 2023 to file a response.[2]The respondent entered into voluntarily liquidation on 12 January 2023. The liquidator wrote to the Tribunal on 2 February 2023 stating that he did not intend to admit or defend any claim.[3]On 5 September 2022 respondent informed employees that the company would cease to provide legal services after 30 September 2022. The respondent proposed to dismiss as redundant 20 or more employees based at 4 Mosley Street, Newcastle upon Tyne. The first dismissal took effect on 30 September 2022 and the last dismissal took effect on 30 November 2022.[4]There was no proper warning or consultation undertaken with a recognised trade union or the claimant. There was no consultation with the claimant between 5 September 2022 and 30 September 2022. No employee representatives had been elected or appointed for any such consultation within section 188A of the 1992 Act.[5]The claimant resigned from his employment with the respondent on 23 September 2022. As he resigned before 30 September 2022 which was the first day the respondent was proposing to 4.17 Rule 21 judgment September 2017 Case No:2502519/2022 dismiss as redundant 20 or more employees, the claimant’s claim under section 189 of the 1999 Act is not well-founded and is dismissed.[6]The claimant’s claim for outstanding pension contributions is being dealt with by Clumber Consultancy and, therefore, no award is made by this Tribunal.[7]As no response has been received by the Tribunal from the Respondent, the above Judgment has been entered without a hearing on the basis of the information provided by the claimant and in accordance with Rule 21 of the Employment Tribunal Rules of Procedure 2013.[1]On 19 July 2023 the claimant submitted an application to the Tribunal requesting the Judgment dated 4 July 2023 to be reconsidered on the grounds that an error had been made in respect of the claim for a protective award following a failure by the respondent to carry out the collective consultation as required by section 188 of the 1992 Act.[2]The Tribunal wrote to the respondent and the Secretary of State, as an interested party in these proceedings, on 18 September 2023 and both were required to write to the Tribunal by 2 October 2023 with any objections to the requested reconsideration and with their views on whether the application could be determined without a hearing. Neither the respondent nor the Secretary of State have replied to the Tribunal’s letter dated 18 September 2023.[3]The claimant indicated in their letter to the Tribunal dated 29 September 2023 that an oral hearing was not required to deal with this application.[4]As neither party requested an oral hearing, the above Judgment has been entered without a hearing on the basis of information provided by the claimant in accordance with Rules 70 to 72 of the Employment Tribunal Rules of Procedure 2013. Case No:2502519/2022[5]I accept the claimant’s submissions that he was an employee affected by the respondent’s proposal to dismiss 20 or more employees within a period of 90 days, in accordance with section 188 of the 1992 Act. As such, the previous decision was entered in error and I am satisfied that it is in the interests of justice to vary the decision at paragraph 1 of the Judgment dated 4 July 2023 to the effect that the claimant is entitled to a declaration that his claim under section 189 of the 1992 Act is well-founded.[6]I am not satisfied that the claimant is entitled to a protective award pursuant to section 189(3) of the 1992 Act because, as at the date of the Tribunal’s decision (4 July 2023), the claimant had not been dismissed as redundant by the respondent nor was the respondent proposing to dismiss the claimant as redundant. The 1992 Act does not cover an employee whom the employer originally proposed to dismiss but is no longer proposing to dismiss as redundant at the time the protective award is made. Such individuals may be employees whom it was proposed to dismiss, but they are not employees whom it is proposed to dismiss and they cannot, therefore, claim the benefit of a protective award: Securicor Omega Express v GMB [2004] IRLR 9; Cranswick County Foods plc v Beall [2007] ICR 691.