Miss J Adams and others v FFP Realisations 2018 Ltd (In Administration) and others: 2600265/2019 and others

EMPLOYMENT TRIBUNALS

Case No 2600265/2019

Between

Miss J Adams and othersClaimant

FFP Realisations 2018 Ltd (In Administration) and othersRespondent

Before

Employment Judge P Britton

Date 14 January 2020

JUDGMENT

[1]The claims of failure to consult pursuant to section 188 of the Trade Union and Labour Relations (Consolidation Act 1992) succeed:-1.1 The Tribunal orders the first Respondent to pay all the hourly paid employees otherwise known as Process Operatives and as covered by the recognition agreement between the original first Respondent and the GMB remuneration for a protected period of 90 days beginning on 29 October 2019. Case No: 2600265/2019 & Others (see schedule) Page 2 of 7

1.2 Otherwise the Tribunal orders that the first Respondent will pay to each of the Claimants who have presented claims to the Tribunal, who are not covered by the recognition agreement, remuneration for a protected period of 90 days beginning on 29 October 2019

REASONS

[1]It is not in dispute by the administrators (Grant Thornton) for the first Respondent that on 29 October 2018 the vast majority of the workforce, that is to say over 100 employees, were there and then made redundant as the business had gone into administration. There was no consultation period including with the GMB.

[2]A small number of the workforce, approximately 25, were retained by the administrators to assist in the winding down process. Their employment ended on 18 January 2019. Applying the provisions of in particular section 188 TULCRA onwards it follows there was a protected period which commenced on 29 October 2018. The provisions in terms of consultation were not complied with at all. That meant, and I have heard sworn evidence to that effect from Mr John Cannon, a GMB representative at the work site, that albeit the GMB had a recognition agreement for hourly paid employees with the Respondent, it was not consulted at all.

[3]In relation to employees not covered by that recognition agreement, and that would include all the salaried employees who have brought claims before the Tribunal, the Respondent did not invite them to appoint elected representatives for the purposes of consultation and it did not consult them individually in the alternative. It follows that again there was a complete failure to comply with the provisions as to consultation to which I have referred.

[4]Thus it follows that all employees who have brought claims before the Tribunal are entitled to a protective award pursuant to section 190. And thence finally applying the well-known dicta in Susie Radin Limited v GMB and others

[2004] EWCA Civ 180

and in particular at paragraph 45 of the judgment of Peter Gibson LJ, I therefore find that it is just and equitable to make a protective award of 90 days pay for all Claimants who have presented claims before me or are covered by the GMB recognition agreement as per the presentation of the claims by the GMB.

[5]The final point. The Secretary of State was joined as a party to these proceedings a considerable time ago on the basis that clearly he would have an interest in a protective award as it invariably will be the case that it will be the Secretary of State who has to pay the bill. The Secretary of State put in a holding response on 9 July 2019 reserving its position so to speak. It was notified along with all the other parties of today’s hearing on 14 November 2019, it has not attended and it has not made any representations. Case No: 2600265/2019 & Others (see schedule) Page 3 of 7