Mr G Darby and Others v Moore Large and Company Ltd (in administration): 2600880/2023 and Others

EMPLOYMENT TRIBUNALS

Case No 2600880/2023

Between

Mr G Darby and OthersClaimant

Moore Large and Company Ltd (in administration)Respondent

Before

Employment Judge Holbrook

Written representations for claimant

No representations for respondent

Date 12 February 2025

JUDGMENT

[1]The Respondent failed to comply with the requirements of Sections 188 and 188A(1) Trade Union and Labour Relations (Consolidation) Act 1992 and the Tribunal makes a declaration to that effect.

[2]The Tribunal accordingly makes a protective award in respect of all the Claimants named on the attached schedule.

[3]The protected period is a period of 90 days commencing on 13 March 2023.

[4]The Employment Protection (Recoupment of Benefits) Regulations 1996 may apply to these awards.

REASONS

[1]This is a claim advanced by a number of individual Claimants (listed in the attached schedule) who claim entitlement to a protective award following the Respondent in these proceedings, Moore Large & Company Limited (in Administration), terminating the employment of all of them by reason of redundancy shortly before entering into administration. On 27 June 2024 the Administrators confirmed by letter that they consented to the Claimants commencing proceedings for protective awards only.

[2]The Respondent has not presented an ET3 response form to the claim. The Secretary of State for Business and Trade has been joined as an interested party given that any payments would, subject to statutory limits, fall to be paid from the National Insurance Fund under Part XII of the Employment Rights Act 1996. The Secretary of State presented a response on 22 September 2023. This, understandably, neither supports nor resists the claims given the Secretary of State was not present at the events prior to dismissals and is unaware of the circumstances surrounding consultation with employees.

[3]Mr Darby was directed by EJ Heap in a case management order dated 29 August 2024 following a private preliminary hearing on 27 August 2024 to confirm specified information by no later than 14 days from the date that the order was sent to the parties, that date being 10 September 2024. At the hearing Mr Darby indicated he would not object to the Tribunal’s proposal to deal with the claim by an Employment Judge alone on the papers, given the Respondent had not presented a response to the claim and the Secretary of State had indicated he did not intend to attend. The order required the Claimants and the Interested Party to confirm they consent to the protective awards being determined on the papers by an Employment Judge sitting alone. The parties were also given the opportunity to make (further) written representations, if they so wished, by 7 days before the hearing. Other than Mr Darby’s confirmation sent on 13 September 2024 of the information set out in the case management order and that all claimants consented to the claims being determined by on the papers, no written representations have been received but I am treating the Secretary of State’s response dated 22 September 2023 as standing as written representations.

[4]The Secretary of State confirmed in correspondence to the Tribunal on 12 September 2024 and 8 October 2024 that he had no objection to the claims being heard by an Employment Judge sitting alone and on the papers without the need for a hearing.

[5]There are also complaints of unfair dismissal, breach of contract with regard to notice pay, unpaid wages, unpaid holiday pay and unpaid redundancy payments however no permission has been given for the other complaints to proceed either by the Administrators or the Court dealing with the administration of the Respondent and for that reason those proceedings were stayed for 6 months by Employment Judge Heap at a private preliminary hearing on 27 August 2024. This judgment deals solely with the protective award claims. Witnesses

[6]As this was a hearing determined on the papers, I have not heard any witness evidence. However, I have considered the information provided by Mr Darby in his ET1, in the private preliminary hearing as recorded in the case management order of Employment Judge Heap and in his subsequent email, pursuant to her direction that he confirm that information in writing, of 13 September 2024. I must consider the weight that I should attach to that information and email given that I have not heard live evidence from Mr. Darby. I have little hesitation in concluding that I should take account of that information when determining the claims and should give it significant weight. It was initially provided in a hearing before an Employment Judge and is consistent with the information provided in Mr Darby’s ET1. Furthermore no one from either the Respondent or the interested party would have attended in any event to cross-examine Mr. Darby and challenge the veracity of the statement which he has given. Indeed, the Secretary of State would not have been in a position to do so having not been party to the redundancies that have led to these claims. I have nothing to suggest that the account given by Mr Darby is not truthful and accurate. Accordingly, I am satisfied that I can place weight on the information which has been provided despite not having heard live evidence from Mr. Darby himself.

THE LAW

[7]Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 provides for the duty of an employer to consult representatives where they are proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less. That section requires the employer to consult about the dismissals of all persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or by measures taken in connection with them.

[8]In cases where there is no independent trade union recognised by the employer nor are there employee representatives already appointed or elected by the employees for the purposes of receiving information and being consulted about the proposed dismissals, it is incumbent upon the employer to hold an election to appoint such employee representatives. That election must satisfy the requirements of Section 188A(1) Trade Union and Labour Relations (Consolidation) Act 1992 which provides as follows: 188A (1) The requirements for the election of employee representatives under section 188(1B)(b)(ii) are that– (a) the employer shall make such arrangements as are reasonably practical to ensure that the election is fair; (b) the employer shall determine the number of representatives to be elected so that there are sufficient representatives to represent the interests of all the affected employees having regard to the number and classes of those employees; (c) the employer shall determine whether the affected employees should be represented either by representatives of all the affected employees or by representatives of particular classes of those employees; (d) before the election the employer shall determine the term of office as employee representatives so that it is of sufficient length to enable information to be given and consultations under section 188 to be completed; (e) the candidates for election as employee representatives are affected employees on the date of the election; (f) no affected employee is unreasonably excluded from standing for election; (g) all affected employees on the date of the election are entitled to vote for employee representatives; (h) the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them or, if there are to be representatives for particular classes of employees, may vote for as many candidates as there are representatives to be elected to represent their particular class of employee; (i) the election is conducted so as to secure that– (i) so far as is reasonably practicable, those voting do so in secret, and (ii) the votes given at the election are accurately counted.”

[9]Where a Tribunal finds that there has been a breach of the consultation obligations under Section 188 then it must turn to Section 189 which deals with the requirement to make a declaration in respect of well-founded complaints and that a protective award may also be made. A protective award is made in relation to the protected period which begins with the date on which the first of the dismissals to which the complaint relates takes effect and shall not exceed 90 days.

[10]As to the amount of any protective award in that regard, Section 189(4)(b) makes clear that such an award should be of the length that the Tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with any requirement of Section 188.

[11]A sanction under Section 189 is intended to be penal rather than compensatory and the approach of the Tribunal will be to start with 90 days and reduce it only if there are mitigating circumstances justifying a reduction to the extent which the Tribunal considers appropriate (see Susie Radin Ltd v GMB

[2004] IRLR 400

[12]The requirements of consultation under Section 188 require an employer to consult where they are proposing to dismiss as redundant 20 or more employees at one establishment (my emphasis). Therefore, the duty does not arise in respect of those employees who were dismissed as redundant where they are employed in an establishment where there are less than 20 employees, unless those employees themselves would be affected by measures taken in connection with the dismissals (see Section 188(1) Trade Union and Labour Relations (Consolidation) Act 1992). FINDINGS OF FACT 7. Prior to entering into Administration, the Respondent operated from a site at Grampian Buildings, Sinfin Lane Industrial Estate in Derby. The Respondent employed more than 20 employees at that site. All of the Respondent’s employees, and therefore all of the Claimants, worked at that site. 8. I accept the evidence of Mr Darby that all of the Claimants were dismissed as redundant with effect from 13 March 2023 and that the Respondent went into administration without prior warning on the same day. 9. The lead Claimant confirmed at the hearing before Employment Judge Hearp on 27 August 2024 and in writing on 13 September 2024 that the Respondent had no union presence or employee representatives. There is nothing to counter this from the Respondent and the Secretary of State has confirmed he holds no information about this issue. I accept this evidence from Mr Darby and I find that there were no trade union or elected employee representatives and that the Claimants are therefore entitled by virtue of section 189(1)(d) to present their individual complaints to the Tribunal. 10. Given I accept that the Respondent went into administration without warning, I also accept the evidence of the Mr Darby as set out in his claim form, at the hearing on 27 August 2024 and in writing on 13 September 2024 that there was no information given or consultation about the redundancies (or indeed the Respondent going into administration) prior to the dismissals that none of the steps set out in Section 188 of the Trade Union & Labour Relations (Consolidation) Act 1992 were taken prior to the first of the redundancies taking place. I find that there was no consultation whatsoever in relation to the proposed redundancies with any of the employees concerned prior to the all of the Claimants being dismissed as redundant on 13 March 2023. CONCLUSIONS 11. I am satisfied that the Claimants in this case do have standing to bring their complaints before the Employment Tribunal because I accept that there was no recognised independent trade union and no existing employee representatives with whom the Respondent was required to consult and who would otherwise be the correct entities to have advanced this claim. 12. For the reasons that I have already given, I am satisfied that the Respondent was in breach of the provisions of Section 188 and 188A Trade Union & Labour Relations (Consolidation) Act 1992 on the basis that no attempt was made to comply with the duty to appoint employee representatives and accordingly no consultation took place with the affected employees prior to the termination of their employment by reason of redundancy.

CONCLUSIONS

[13]The establishment or site operated by the Respondent had over 20 employees who were dismissed as redundant. It follows that the Claimants who were based at that site are entitled to protective awards. No reason has been advanced as to why a protective award should not be made and I consider that it is appropriate to do so in this case.

[14]All Claimants are therefore entitled to a protective award and have standing to bring such a complaint under Section 189(1)(d) Trade Union and Labour Relations (Consolidation) Act 1992.

[15]For all of those reasons, the complaints of all of the Claimants in the attached schedule are well-founded and succeed and I make a declaration to that effect under section 189(2) TULCRA.

[16]I also exercise my discretion under section 189(2) TULCRA to make a protective award in respect of each of the Claimants who were all made redundant on 13 March 2023. As I have set out above, the starting point is 90 days as per the decision in Susie Radin. The Respondent (nor the Administrators, although they have consented for this claim to proceed) provided no response setting out any special or mitigating circumstances regarding its insolvency or otherwise as to why that starting point should be reduced. The Interested Party has confirmed he has no knowledge of circumstances surrounding the dismissals and any consultation. There is therefore nothing before there is nothing before me which would justify any reduction. Accordingly I am satisfied that it is appropriate I am satisfied that it is just and equitable to award 90 days pay in respect of each of the Claimants given the Respondent failed entirely to comply with its duties under section 188 TULCRA to provide information to and consult with the Claimants, as I have accepted the lead Claimant’s account that the Respondent went into administration on 13 March 2023 without any prior warning to the Claimants, so no consultation took place at all.

[17]The judgment of the Tribunal is that the Claimants’ complaints under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 of a failure by the Respondent to comply with the requirements of section 188 of the 1992 Act are well-founded. The Tribunal orders the Respondent by way of protective award under section 189(3) of the 1992 Act to pay to all Claimants named in the attached schedule who were dismissed for redundancy on 13 March 2023 remuneration for the period of 90 days beginning on 13 March 2023. The Recoupment Regulations apply. Approved by