Mr A Hartshorne and Others v British Midland Regional Ltd T/a Flybmi (In Administration): 2601669/2019 and Others (see schedule)

EMPLOYMENT TRIBUNALS

Case No 2601669/2019, 2601840/2019

Between

Mr A Hartshorne and OthersClaimant

British Midland Regional Ltd T/a Flybmi (In Administration)Respondent

Before

Employment Judge Rachel Broughton

Not represented for claimant

Not represented for respondent

Date 17 December 2019

JUDGMENT

[1]The Respondent failed to comply with section 188 of The Trade Union and Labour Relations (Consolidation) Act 1992 and is Ordered to pay each of the Claimants listed on the attached schedule and also those represented by Unite the Union under case number 2601840/2019 remuneration for the Protected Period of 90 days starting on 18 February 2019.

REASONS

[2]The claims are brought by two groups of Claimants; the first group (case number 2601840/19) are represented by Unite and those claims were lodged with the Tribunal on 15 May 2019. The second group (case number 2601669/10) are represented by Simpson Millar solicitors and those claims were lodged on the 7 June 2019. Both sets of Claimants are bringing claims for a protective award pursuant to section 188 of the Trade Union and Labour Relations Consolidation Act 1992 (TUL(C)RA) against the Respondent. The claims all relate to the same collective redundancy exercise and have therefore been consolidated.

[3]The Respondent went into administration on 18 February 2019 and the Claimants were made redundant on or after 18 February 2019. The Claimants case is that the Respondent failed to carry out any consultation with Unite or employee representatives or in the absence of employee representatives, with the affected employees. Page 1 of 6 Preliminary Hearing – 18 September 2019

[4]At a Closed Telephone Preliminary Hearing before Regional Employment Judge Swann on 18 September 2019, it was determined on the basis of a letter dated 10 June 2019 sent to Simpson Millar solicitors (formerly JWK Solicitors) confirming that the administrators gave consent for the proceedings against the Respondent and a second letter, addressed to the Tribunal which confirmed that neither the Respondent nor the joint administrators would be in a position to have any involvement in proceedings, that consent had been given by the administrators for matters to proceed in respect of all the claims.

[5]No defence was filed on behalf of the Respondent company to ether set of claims.

[6]The issue around which class of employees were covered by the Recognition Agreement as between the Respondent company and Unite was addressed at the Preliminary Hearing. Unite advised the Tribunal that the recognition agreement covered all cabin crew.

[7]An Order was made for the provision of further details regarding the scope of the recognition agreement.

[8]With the exception of one person (Ms Laura De Paz- Davy), the Claimants represented by Simpson Millar solicitors were not cabin crew. Ms Laura De Paz -Davy is listed on Unite’s list of claimants’ and therefore an Order was made at the Preliminary Hearing that following further details regarding the scope of the recognition agreement, Simpson Millar solicitors were to inform the Tribunal whether the claim brought on behalf of Ms Laura De Paz -Davy as part of the second group of employees would be withdrawn, given she would be covered by the claim brought by Unite.

[9]It was agreed that the final hearing would be conducted on written submissions only without the need for any representatives or Claimants to attend.

The Evidence

[10]In accordance with the Order of the Tribunal dated 7 October 2019, Unite produced a copy of the Recognition Agreement on 8 October 2019. The agreement is signed by the company and albeit the copy produced to the Tribunal is unsigned by Unite, it is the undisputed evidence of Unite that this is the agreement entered into between the parties. It is dated 11 January 2018.

[11]The Recognition Agreement provides at paragraph 2.2 as follows; “The Company recognises the Union as the sole collective bargaining unit for and on behalf of all Cabin Crew employed by the Company at all UK operating bases (the Bargaining Units) with regards to; Pay, hours of work and holidays”

[12]Simpson Millar solicitors by email of the 9 October 2019 withdrawing the claims of three of the Claimants under case number 2601669/10 on the basis that as cabin crew, they are covered by the Recognition Agreement and thus the claim brought by Unite; those individuals are Ms De Paz -Davy, Ms Gotts and Ms Thompson.

[13]Simpson Millar solicitors produced witness statements from two of the claimants; Mr. Andrew Hutton – Young who had been employed as stock Page 2 of 6 control of company aircraft parts and based at Bristol Airport and Mr. Gary Park who had been employed by the company as operations controller based at the East Midlands airport. I have read those statements.

The Facts

[14]The undisputed evidence of the Claimants is that the Respondent company proposed to dismiss as redundant 20 or more employees at the establishments where they worked and that the Respondent company failed to comply with its obligations under section 188 in that there was a complete failure to consult with the recognised Union (Unite), employee representatives and or indeed the employees themselves in the absence of representatives

[15]The date the first dismissal took effect, was 18 February 2019 on the basis that this was the date the company went into administration. That this is the date the first dismissal took effect is undisputed.

[16]The Respondent has not sought to adduce any evidence or otherwise make representations regarding mitigating circumstances. The Law Liability

The Law

[17]Section 188(1) TULR(C)A provides as follows; “where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about those dismissals the persons who are appropriate reprehensive of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken about those dismissals” (1A) The consultation shall be begin in good time and in any event –(a) Where the employer is proposing to dismiss 100 or more employees as mentioned in section (1) at least 45 days and

(b) Otherwise at least 30 days before the first of the dismissals take effect. (1B) For the purposes of this section the appropriate representatives of any affected employees are- (a) If the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union; or (b) In any other case, whoever of the following employee representatives the employer chooses; (i) Employee representatives appointed or elected by the affected employees otherwise than for the purposes of this section, who (having regard to the purpose purposes for and the method by which method they were appointed or elected) have authority from those employees to receive information and to be consulted about the proposed dismissal on their behalf (ii) Employee representatives elected by the affected employees, for the purposes of this section, in an election satisfying the requirements of section 188A(1) Remedy Page 3 of 6

Remedy

[18]Where a Protective Award has been made, remuneration must be paid to all employees who have been (or are to be) made redundant and are of a description specified by the tribunal; section 190 (1) TULR(C) A.

[19]The rate of remuneration is one-weeks pay for each week of the Protected Period calculated in accordance with sections 220 – 229 of the Employment Rights Act 1996

[20]The purpose of a Protective Award is punitive, not compensatory. The Court for Appeal in Susie Radin Ltd V GMB and ors

2004 ICR 893

set out guidance on how Tribunals should approach their discretion under section 189 and I reminded myself of that guidance.

[21]The fact that the company is in administration and any issue as to the ability of the Respondent to pay, is not a factor that I should consider: Smith and or v Cherry Lewis Ltd (in receivership)

2005 IRLR 86

EAT.

Conclusion

[22]The employers default was serious, there is no evidence of any attempt to carry out any form of consultation.

[23]The proper approach of the tribunal where there has been a complete failure is to start with the maximum period of 90 days and reduce it only if there are mitigating circumstances justifying a reduction to an extent to which the tribunal considers appropriate. No mitigating factors have been pleaded.

[24]The complaint that the Respondent breached section 188 of TULR(C)A is well founded.

[25]The Tribunal hereby makes a Protective Award for the Claimants listed on the attached schedule for remuneration for the Protected Period of 90 days starting on 18 February 2019.