Mr S Baker and Others v FR Shadbolt and Sons Ltd (In voluntary liquidation): 3201343/2024 and Others
EMPLOYMENT TRIBUNALS
Case No 3201343/2024
Between
Mr S Baker and OthersClaimantFR Shadbolt and Sons Ltd (In voluntary liquidation)Respondent
Before
Employment Judge MoorDate 10 September 2025
JUDGMENT
[1]The claims for a protective award under s 188 Trade Union and Labour Relations (Consolidation) Act 1992 brought by all the Claimants are well-founded. I declare that the Respondent failed to comply with its statutory collective consultation obligations before proposed redundancy dismissals took effect at its establishment at 7 – 9 Springwood Drive, Braintree, CM7 2YN on 17 May 2024.[2]The Tribunal makes a protective award in respect of each claimant, that the employer pay remuneration for the protected period which began on 17 May 2024 and is for a period of 90 days.[3]The Employment Protection (Recoupment of Benefits) Regulations 1996 apply to these awards.
REASONS
[1]The Fourth Claimant, Mr L Fragoulis, presented his claim for a protected award but was, in error by the Tribunal, missed from the schedule of Claimants whose claims for such an award against the same Respondent were heard last week. Mr Fragoulis had also brought a wrongful dismissal claim. He was sent a Notice of Hearing for today. Breach of Contract Claims: Separate Judgments[2]The First, Second and Third Claimants, Mr Baker, Mrs Ward and Mr Waldock brought wrongful dismissal claims which were listed to be heard today.[3]For ease I gave individual judgments in respect of each Claimant’s wrongful dismissal claim: they each claimed they had not been given contractual notice of dismissal and claimed damages as a result. 1st, 2nd and 3rd Claimants’ Application to Amend[4]On 9 April 2025, by email Mr Baker and Mrs Ward had applied to amend their claims to include claims for a protective award. While simply put, it was clear to me from their emails they had wanted to add to their claims, claims relating to breach of the collective consultation requirements under sections 189 & 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘the 1992 Act’). The Tribunal had not responded to this application, for which I apologised.[5]On 29 January 2025 (an email which he chased for a response on 2 February 2025), Mr Waldock offered to stand as lead claimant in the protective award claims, (the claimant proposed by the Tribunal as lead had not wanted to do so.) Mr Waldock did not receive a response to his email, save for a holding response, again for which I apologised.[6]I heard the applications to amend and, for the reasons I gave orally at the Tribunal but do not repeat here, I allowed the applications. (If any party wishes to ask for my written reasons they must do so within 14 days of the judgment being sent.) The Secretary of State was merely an interested party, rather than a party, therefore I judged that it was not necessary to give him/her notice of the applications. The First Respondent had not entered a response and, again, therefore notice was not required.[7]Thus there are 4 outstanding claims for a protective award in relation to the Respondent. The Claimants were ready today to give evidence about that matter. (I had also seen the Judgement of EJ MacDonald in relation to the same redundancies approved on 8 September 2025. I understand that judgment was given orally last week but the written judgment may not yet have been promulgated.)[8]I made sure to read and consider the Secretary of State’s written observations given in the other protective award cases.[9]I decided that in accordance with the Presidential Guidance this hearing was suitable for a judge sitting alone. There were no issues of disputed fact, it appeared to me, for which the experience of non-legal members would add significant value.
Findings of Fact
[10]I heard evidence from all four claimants. They did not refer me to any documents. At the time of their immediate redundancy on 17 May 2024 they had all been employed by the First Respondent as follows: Mrs Ward as a health and safety administrator since 2 March 2015; Mr Baker in despatch since 4 April 2022; Mr Waldock as a production supervisor since 18 August 2014 and Mr Fragoulis as a CNC operator since15 September 2006.[11]All four claimants were employed to work at the First Respondent’s premises at 7 – 9 Springwood Drive, Braintree, CM7 2YN. This, in my judgment, constituted an establishment within the meaning of the 1992 Act.[12]On 17 May 2024, all four Claimants were surprised to find out from the First Respondent that they had been made redundant immediately. The company had gone into voluntary liquidation. The First Respondent had given them no warning about the impending redundancies; it had not attempted to consult with them at all; and it had made no attempt to invite its employees to appoint or elect representatives. It did not recognise an independent Trade Union. No one was given any information about the proposed redundancies in advance.[13]On the same day the First Respondent dismissed as redundant about 74 other employees; in any event, I accept Mrs Ward’s evidence that it made redundant more than 20 and fewer than 100 employees.
Legal Principles
[14]Where an employer is proposing to dismiss as redundant 20 employees or more at one establishment, it must begin consultation in good time and in any event at least 30 days before the first of the dismissals took effect, see section 188 of the 1992 Act (section 188(1) and (1A)(b)).[15]Given that the First Respondent did not recognise a trade union and no employee representatives had been elected, the Claimants are allowed to bring these claims themselves, see section 189(1(a) of the 1992 Act.[16]Under section 188(4) of the 1992 Act the employer ought to provide information in writing about the proposed redundancies including the reasons and the numbers and descriptions of employees.[17]Under section 188(7) if there are any special circumstances which render it not reasonably practicable for the employer to comply with section 188(1A) or (4) then the employer shall take such steps towards compliance with that requirement as are reasonably practicable.[18]Where there is a breach of section 188 the Tribunal shall make such a declaration and may make a protective award, section 189(2) of the 1992 Act.[19]If a protective award is made it is an award in respect of employees who have been made redundant, in respect of whose dismissal the employer has failed to comply with a requirement of section 188, ordering the employer to pay remuneration for the protected period, see section 189(3).[20]The protected period begins with the day on which the first of the dismissals to which the complaint relates takes effect and is of such length as I judge to be just and equitable (meaning fair) in all the circumstances and having regard to the seriousness of the employer’s default, but shall not exceed 90 days, section 189(4) of the 1992 Act.
Analysis
[21]First Respondent was clearly in breach of s 188 of the 1992 Act by failing to consult at all about redundancies of 20 more employees employed at the same establishment.[22]In my judgment it is clearly appropriate in this case to make a protective award because of the total failure to comply.[23]The length of the protective award is to be of such length as 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 s 188, but shall not exceed 90 days: s 189(4)(b) of the 1992 Act.[24]The starting point is the 90-day maximum: Cranswick Country Food plc v GMB UKEAT/0225/05/ZT.[25]In this case, there was no evidence of any mitigating circumstances. I have not heard, for example, of any reason why it was not possible to consult. I have not heard about some cataclysmic event. The default was very serious indeed: there is no evidence of any attempt to comply with the obligations I have set out. I therefore make protective awards of 90 days starting from the date of the dismissals, being 17 May 2024. Approved by: Employment Judge Moor Dated: 10 September 2025 Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislationpractice-directions/ ANNEX TO THE JUDGMENT (PROTECTIVE AWARDS) Recoupment of Benefits The following particulars are given pursuant to the Employment Protection (Recoupment of Benefits) Regulations 1996, SI 1996 No 2349. The respondent is under a duty to give the Secretary of State the following information in writing:(a) the name, address and National Insurance number of every employee to whom the protective award relates; and(b) the date of termination (or proposed termination) of the employment of each such employee. That information shall be given within 10 days, commencing on the day on which the Tribunal announced its judgment at the hearing. If the Tribunal did not announce its judgment at the hearing, the information shall be given within the period of 10 days, commencing on the day on which the relevant judgment was respondent to do so within those times, then the information shall be given as soon as reasonably practicable thereafter. No part of the remuneration due to an employee under the protective award is payable until either (a) the Secretary of State has served a notice (called a Recoupment Notice) on the respondent to pay the whole or part thereof to the Secretary of State or (b) the Secretary of State has notified the respondent in writing that no such notice is to be served. This is without prejudice to the right of an employee to present a complaint to an Employment Tribunal of the employer’s failure to pay remuneration under a protective award. If the Secretary of State has served a Recoupment Notice on the respondent, the sum claimed in the Recoupment Notice in relation to each employee will be whichever is the less of:• the amount (less any tax or social security contributions which fall to be deducted by the employer) accrued due to the employee in respect of so much of the protected period as falls before the date on which the Secretary of State receives from the employer the information referred to above; OR• the amount paid by way of or paid as on account of jobseeker’s allowance, income-related employment and support allowance or income support to the employee for any period which coincides with any part of the protected period falling before the date described in (a) above; or• in the case of an employee entitled to an award of universal credit for any period (“the UC period”) which coincides with any part of the period to which the prescribed element is attributable, any amount paid by way of or on account of universal credit for the UC period that would not have been paid if the person’s earned income for that period was the same as immediately before the period to which the prescribed element is attributable. The sum claimed in the Recoupment Notice will be payable forthwith to the Secretary of State. The balance of the remuneration under the protective award is then payable to the employee, subject to the deduction of any tax or social security contributions. A Recoupment Notice must be served within the period of 21 days after the Secretary of State has received from the respondent the above-mentioned information required to be given by the respondent to the Secretary of State or as soon as practicable thereafter. After paying the balance of the remuneration (less tax and social security contributions) to the employee, the respondent will not be further liable to the employee. However, the sum claimed in a Recoupment Notice is due from the respondent as a debt to the Secretary of State, whatever may have been paid to the employee, and regardless of any dispute between the employee and the Secretary of State as to the amount specified in the Recoupment Notice.
Analysis
[1]The claim for breach of contract (wrongful dismissal) is well-founded and succeeds. The Respondent did not give the Claimant any contractual notice of the termination of his employment.[2]The Respondent must pay to the Claimant damages of £2,496. (See Calculation attached) Approved by: