Mr A Hague and others and Mr P Munckton v Streamline Press Ltd (in Administration) and The Secretary of State for Business, Energy and Industrial Strategy: 2602641/2022 and others

EMPLOYMENT TRIBUNALS

Case No 2602641/2022

Between

Mr A Hague and others and Mr P MuncktonClaimant

(1) Streamline Press Ltd (in administration) (2) The Secretary of State for Business, Energy and Industrial StrategyRespondent

Before

Employment Judge Heathcote

Written representations for claimant

Date 29 June 2023

JUDGMENT

[1]The First 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 5 October 2022.

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

REASONS

[1]The employment of the Claimants was terminated by way of redundancy as a result of the First Claimant entering into administration. The Claimants have each advanced claims against the First Respondent for protective awards. Claims have also been advanced against the Second Respondent (the Secretary of State for Business, Energy and Industrial Strategy) on the basis that it is common ground that should a protective award be made, those sums will fall to be paid, subject to a cap, by the Second Respondent out of the National Insurance Fund.

[2]In respect of the first 42 claimants listed in the schedule, of which Mr. Alan Hague is the lead Claimant, ACAS was notified under the early conciliation procedure on 6 November 2022 and the certificate was issued on 7 November 2022. The ET1 was presented on 8 November 2022.

[3]In respect of the claim of Mr. Paul Munckton, the second Claimant (claim number 2602641/2022), ACAS was notified on 19 October 2022 and the certificate was issued on 21 October 2022. The ET1 was presented on 9 November 2022. I considered this latter claim alongside the others, pursuant to an Order dated 14 November 2022.

[4]Consent has been given by the parties to the hearing proceeding before an Employment Judge sitting alone and it has been agreed that the matter would be dealt with on the papers.

[5]The First Respondent has not entered an ET3 response form in relation to the claims. The Second Respondent has filed an ET3 form and takes a neutral position on the basis that they were not party to the process leading up to the Claimants’ dismissals and are unable to comment on the consultation process, or lack of it.

[6]I have taken into account all of the submissions and information provided by or on behalf of the Claimants and the Second Respondent before determining the claims.

The Law

[7]Section 188 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

Findings of fact

[12]The First Respondent entered administration on 5 October 2022. On the same day, the First Respondent dismissed the Claimants by way of redundancy.

[13]The Claimants worked at a single establishment at which there was no recognised trade union.

[14]The First Respondent failed to organise the election of employee representatives and to consult with them in accordance with sections 188 and 188A of Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”).

[15]There was no consultation whatsoever in relation to the proposed redundancies with the Claimants.

[16]The first Respondent failed to submit a Response to the claims and the administrator has given consent for those claims to proceed.

Conclusions

[17]The Claimants have standing to bring their complaints. There was no recognised independent trade union and no existing employee representatives with whom the First Respondent was required to consult.

[18]The First Respondent was in breach of the provisions of Section 188 and 188A 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.

[19]This came as a complete surprise to the Claimants, despite the legal requirement to consult, given the number of redundancies. Whilst there may be instances where consultation is not possible, insolvency is rarely such a circumstance. I do not find any mitigating circumstances to justify a reduction in the award.

[20]Accordingly, the complaints of all the Claimants’ complaints in the attached schedule, pursuant to TULRCA section 189, are well founded and succeed. Employment Judge Heathcote Date: 29 June 2023 Notes

Conclusions

[1]A protective award is a two-stage process. The tribunal at this stage makes no financial award, but give a judgment that the claimants are entitled to a protective award in the terms set out above. The claimants must then seek payment of their individual awards from the respondent, quantifying the amount.

[2]Failure to pay (should that occur), or any dispute as to the amount payable, then becomes a matter for a further separate claim under s192 of the Trade Union and Labour Relations (Consolidation) Act 1992 for payment of the award. .