Mr S Iliffe and Others v Secretary of State for Business and Trade: 3301204/2025 and Others
REASONS
[1]At the hearing on 2 October 2025, I dismissed the Claimants’ claims against the Respondent on the grounds that, in each case, having regard to s.184(2)(d) of the Employment Rights Act 1996, the Respondent had already paid to each Claimant out of the National Insurance Fund eight weeks’ pay in respect of arrears of pay in compliance with s.182 and s184(1) of the Act.[2]An employment tribunal’s power to determine any claim that comes before it is strictly defined by statute. In other words, tribunals have no inherent jurisdiction. It is perhaps an obvious statement, but when deciding any claim that comes before me, I am required to apply the applicable law. If the Claimants, or any of them, believe that the Government has published inaccurate or misleading statements concerning their rights, this is something they should take up with the Respondent. I offer no view as to whether such statements have been made. I am clear that I must act in accordance with the powers conferred upon me and apply the law.[3]It is not in dispute that the Claimants’ former employer, Tingdene Homes Ltd is insolvent. Their rights on insolvency as against the Respondent are set out in Part XII of the Employment Rights Act 1996. Section 182 of the Act provides: 182 Employee’s rights on insolvency of employer. If, on an application made to him in writing by an employee, the Secretary of State is satisfied that—(a) the employee’s employer has become insolvent,(b) the employee’s employment has been terminated, and(c) on the appropriate date the employee was entitled to be paid the whole or part of any debt to which this Part applies, the Secretary of State shall, subject to section 186, pay the employee out of the National Insurance Fund the amount to which, in the opinion of the Secretary of State, the employee is entitled in respect of the debt.[4]Section 184 of the Act sets out the debts to which Part XII applies. I am only concerned here with section 184(1)(a): 184 Debts to which Part applies.(1) This Part applies to the following debts— (a) any arrears of pay in respect of one or more (but not more than eight) weeks, (b) any amount which the employer is liable to pay the employee for the period of notice required by section 86(1) or(2) or for any failure of the employer to give the period of notice required by section 86(1), (c) any holiday pay— (i) in respect of a period or periods of holiday not exceeding six weeks in all, and (ii) to which the employee became entitled during the twelve months ending with the appropriate date, (d) any basic award of compensation for unfair dismissal or so much of an award under a designated dismissal procedures agreement as does not exceed any basic award of compensation for unfair dismissal to which the employee would be entitled but for the agreement, and (e) any reasonable sum by way of reimbursement of the whole or part of any fee or premium paid by an apprentice or articled clerk.[5]Section 184(2)(d) goes on to state: (2) For the purposes of subsection (1)(a) the following amounts shall be treated as arrears of pay— … (d) remuneration under a protective award under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992.[6]The Claimants believe that the Respondent has failed to pay them the full amounts payable to them. They rely upon guidance published online on the GOV.UK website (Attachment 8 to their submissions) which states: “You cannot get a payment for a protective award and arrears of pay for the same period.” They correctly point out that the protective award is for a period of 90 days, commencing on 5 December 2023 and running therefore to 4 March 2024, and further that they are owed wages in respect of the period 1 November 2023 to 5 December 2023. I agree that there is no overlap between these two periods. But this does not mean that the Claimants are therefore entitled to look to the Respondent to make good their wages for the earlier period. There is an upper limit on the total sums they may claim. Even where the protected period and the period in respect of which any wages have not been paid do not overlap, there is a cap on the total amount that will be paid by the Respondent, as set out in section 184 above. Specifically, “arrears of pay” are limited to eight weeks in total. Furthermore in this regard, “arrears of pay” includes not just regular pay, but also remuneration under a protective award, meaning that the Respondent is only liable for a maximum of eight weeks in respect of any such “pay” whenever it falls due. I have no jurisdiction to make other than one award of up to eight weeks’ pay in respect of all “arrears of pay”, giving the Respondent full credit for any “arrears of pay” already paid. Each of the Claimants has already been paid a sum equal to eight weeks’ pay by the Respondent. Accordingly, the Respondent has no further liability to them. I am in full agreement with the Respondent’s analysis in his letter to the Tribunal dated 5 March 2025. The claims are dismissed. Approved by:[1]Of the Tribunal’s own initiative, the name of the Respondent is amended to Secretary of State for Business & Trade.[2]The Claimants’ claims are dismissed on the grounds that in each case, having regard to s.184(2)(d) of the Employment Rights Act 1996 (which provides that remuneration under a protective award counts in any calculation of an employee’s arrears of pay), the Respondent has already paid to each Claimant out of the National Insurance Fund eight weeks’ pay in respect of arrears of pay in compliance with s.182 and s184(1) of the Act. Approved by: