E Pysiewicz and others v Orchard House Foods Ltd (in administration) and The Secretary of State for Business and Trade: 3302576/2023 and others and 2404532/2023
JUDGMENT
[1]The first respondent has failed to comply with a requirement of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. The claim for a protective award succeeds.[2]The Tribunal makes a protective award that the employer pay remuneration for the protected period which began on 18 January 2023 and is for a period of 90 days in respect of:a. the individual claimants referred to in Schedule A, who worked at the first respondent’s establishment at 79 Manton Road, Earlstrees Industrial Estate, Corby NN17 4JL, and who were dismissed as redundant on or after 18 January 2023; andb. the claimants covered by the collective bargaining agreement between Unite and the first respondent, and who worked at the first respondent’s establishment at 79 Manton Road, Earlstrees Industrial Estate, Corby NN17 4JL, and who were dismissed as redundant on or after 18 January 2023, which includes but is not limited to those employees referred to in Schedule B.[3]The Recoupment Regulations apply. Case No: 3302576/2023 & Others and 2404532/23 10.5 Reserved judgment with reasons – rule 62 March 2017 Schedule A (exhaustive list of claimants not covered by collective bargaining agreement) First Name Surname Claim number Adele Robinson 3305417/2023 Agnieszka Surmacz 3305418/2023 Amanda Seja 3305490/2023 Ana Paula Teixeira 3304142/2023 Andreaa Andrei 3305419/2023 Andrzej Scholtz 3305420/2023 Ann Revell 3305448/2023 Ann-Marie Walker 3305421/2023 Brian Turner 3305422/2023 Carole Fowkes 3305423/2023 Connor Scott 3305543/2023 Craig Cottol 3305424/2023 Dace Treiliba 3305425/2023 Daniel Godfree 3305426/2023 Danielle Mitchell 3305451/2023 David Talbot 3305427/2023 Ewelina Pysiewicz 3302576/2023 & 3305445/2023 Frances Hyde 3305449/2023 Gary Minnikin 3305542/2023 James Coles 3305429/2023 Karl Andrews 3305450/2023 Katarzyna Booth 3305416/2023 Kiaran Saunders 3305430/2023 Kirsty Watkins 3304155/2023 Krystztof Zagorski 3305431/2023 Laszlo Szucs 3305432/2023 Laura Barber 3305433/2023 Lesley Restorick 3305434/2023 Lewis Fitzpatrick 3305443/2023 Marcis Skellis 3305435/2023 Marta Murawska 3305436/2023 Michael Gardner 3305437/2023 Michael Hall 3305438/2023 Mohammad-Yaseen Malak 3305540/2023 Natalia Wroblewska 3305439/2023 Nicola Armstrong 3305447/2023 Ramunas Dervinskas 3305539/2023 Samantha White 3305440/2023 Sharon McClelland 3305441/2023 Sharon Mutch 3303871/2023 Sharon Thompson 3305422/2023 Sheena Coles 3305444/2023 Case No: 3302576/2023 & Others and 2404532/23 10.5 Reserved judgment with reasons – rule 62 March 2017 Tomas Hmilansky 3305452/2023 Tomasz Salamon 3305446/2023 Wojciech Sowa 3305544/2023 Case No: 3302576/2023 & Others and 2404532/23 10.5 Reserved judgment with reasons – rule 62 March 2017 Schedule B (non-exhaustive list of claimants covered by collective bargaining agreement) First Name Surname Claim number Adrian Dworski 3305488/2023 Andris Pavars 3305484/2023 Angelina Pranghadzhiyska 3305467/2023 Badria Hassan 3304138/2023 Bhanuben Patel 3305485/2023 Bozena Olejniczak 3305461/2023 Carolina Cebotari 3305465/2023 Csaba Mile 3304202/2023 Daiva Bitinaityte 3305471/2023 Daniela Bitca 3305458/2023 Dawn Kelly 3304201/2023 Ewa Kowalska 3305455/2023 Guiseppe Marsala 3305541/2023 Georgi Prangadzhiyski 3305466/2023 Heidi Redhead 3305478/2023 Ilona Bondar 3305483/2023 Iwona Salamon 3305474/2023 Izabela Husar 3305428/2023 Izabela Kanclerz 3305460/2023 Janusz Wilczynski 3305468/2023 Janusz Nastulak 3305482/2023 Joanna Cwikla 3305453/2023 & 3305479/2023 Katarzyna Naturalna 3305472/2023 Katarzyna Treler 3305473/2023 Lilia Vlas 3305457/2023 Lucia Bulimar 3305489/2023 Lukasz Pysiewicz 3302577/2023 & 3305459/2023 Magdalena Pysiewicz 3305492/2023 Mark Doran 3305538/2023 Marta Swiecka 3305475/2023 Michael Koszara 3305546/2023 Mihaela Comanescu 3305480/2023 Mihaela Gabriela Stoia 3305463/2023 Milena Galway 3304203/2023 Moldovan Gheorge Florin 3305464/2023 Monica Galeru 3305462/2023 Monika Michalska 3305491/2023 Nikolay Aydarov 3305477/2023 Pawel Koszara 3305545/2023 Paweł Kowalski 3305454/2023 Silvia Bitca 3305456/2023 Slawomir Wieczorek 3305470/2023 Stoyan kirilov 3305487/2023 Case No: 3302576/2023 & Others and 2404532/23 10.5 Reserved judgment with reasons – rule 62 March 2017 Tomasz Kempkiewicz 3305469/2023 Traian Udrea 3305486/2023 Willy Comanescu 3305481/2023 Yogesh Natuarlal 3305476/2023 Case No: 3302576/2023 & Others and 2404532/23 10.5 Reserved judgment with reasons – rule 62 March 2017REASONS
[1]At the hearing, I had before me a 223-page bundle prepared by Alan Lewis. The day before the hearing, a related set of claims brought by Unite in Manchester Employment Tribunal (claim no. 2404532/2023) were joined to these proceedings which I heard together.[2]Alan Lewis also helpfully produced written submissions for this hearing confirming that all the claims in this action are limited to claims for a protective award pursuant to section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 and more particularly sections 189(1)(a) (relating to a failure to arrange an election of employee representatives or to comply with the rules on elections) and 189(1)(c) (relating to the failure to inform and consult a recognised trade union).[3]Mr Lewis confirmed that the administrator had provided written confirmation (referred to to in the bundle) that it did not object to the resumption of these proceedings.[4]Neelam Verma a Trade Union officer for Unite attended the hearing as a witness. Csab Mile also attended as a witness for Unite.[5]One of the claimants who was present at the hearing, Kirsty Ward, purported in her ET1 claim form to have brought claims on behalf of all of the employees dismissed by the first redundant. Ms Ward confirmed she was not in the collective bargaining unit, and nor was she an elected employee representative (as is explained below no elections occurred). Further, Ms Ward had not added any additional claimants to her claim form in accordance with the claim form requirements for a multiple claim. I therefore found as a preliminary matter that whilst Ms Ward’s claim on her own behalf was valid, she had not made a valid tribunal claim on behalf of any other employees because she was not an employee representative and so did not meet the requirement for bringing a claim on behalf of others under s189(1)(b) TULR(C)A, nor the ET multiple claim form requirements.[6]There are two groups of claimants. The first group is made up of individual claimants who are not covered by a trade union collective bargaining agreement with the first respondent. I refer to this group as the Schedule A claimants.[7]The second group is covered by a collective bargaining agreement with the first respondent and I refer to them as the Schedule B claimants.[8]It was not entirely clear to me whether all of the consolidated claims referred to in the Tribunal Order dated 19 September 2023 had been accounted for Case No: 3302576/2023 & Others and 2404532/23 10.5 Reserved judgment with reasons – rule 62 March 2017 in the list of Schedule A claimants and Schedule B claimants provided by Mr Lewis. Mr Lewis also explained there were some errors in the lists, with some duplication and some incorrectly added names.[9]Further, the bundle of documents did not contain ACAS certificates so it was not possible for me to verify that all of the claims had been brought in time although Mr Lewis assured me they had been.[10]I therefore agreed with the representatives and directed by email dated 5 March 2024, that Mr Lewis would work with Thompsons solicitors (who represent Unite) to do the following by Friday 8 March 2024: 1. Mr Lewis to cross-check the Schedule A list of claimants against the tribunal list of claim numbers to ensure that all Schedule A claimants have a valid employment tribunal claim number and to add the relevant tribunal claim number next to the relevant claimant's name on Schedule A and to provide a written explanation setting out why all of the claims are in time; 2. Mr Lewis and Thompsons, solicitors for Unite in these proceedings, to work together to ensure that no claimants covered by collective bargaining appear on Schedule A, and that no claimants not covered by collective bargaining appear on Schedule B; 3. Thompsons to identify those Schedule B claimants who brought individual claims and whose individual claims should be dismissed because they have been brought as collective claims by Unite; and Thompsons to identify the collective claims which should not be dismissed and are to be determined by Employment Judge Partington; 4. Mr Lewis to provide a composite Schedule A and Schedule B list updated in accordance with the above, and to identify if there are any individual claims on the tribunal list that are not accounted for on either Schedule A or Schedule B.[11]I warned the parties that if there were any unaccounted-for claims that I may need to reconvene a further hearing to resolve any issues arising therefrom.[12]On 8 March 2024, Mr Lewis provided the further information requested and confirmed that there were no individual claims on the tribunal list that had not been accounted for on the updated Schedule A and Schedule B lists.The Issues
[13]Has the first respondent failed to comply with a requirement of section 188 TULR(C)A 1992?[14]Should a protective award be made in respect of each Claimant and if so, under which sub-section of section 189(1) TULR(C)A 1992?[15]What is the period of any protective award, and when did such period begin?[16]Do the recoupment regulations apply? Case No: 3302576/2023 & Others and 2404532/23 10.5 Reserved judgment with reasons – rule 62 March 2017The Law
[17]A complaint that an employer has failed to comply with S.188 of the Trade Union and Labour Relations (Consolidation) Act (TULR(C)A) should be brought under S.189 TULR(C)A.[18]If a tribunal finds that the employer has acted in breach of S.188, it must make a declaration to that effect and may make a 'protective award' - S.189(2).[19]Under these provisions, the persons entitled to bring a complaint seeking a declaration and a protective award are:a. in the case of a failure relating to the election of employee representatives, any of the affected employees or any of the employees who have been made redundant - S.189(1)(a). In these circumstances, it is for the employer to show that the S.188A requirements for election have been satisfied - S.189(1B)b. in the case of any other failure relating to employee representatives, any of the employee representatives to whom the failure related - S.189(1)(b)c. in the case of failure relating to representatives of a trade union, by the trade union - S.189(1)(c), andd. in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant - S.189(1)(d).[20]If there is disagreement as to whether an individual was an appropriate representative for the purposes of S.188, the employer has the burden of satisfying the tribunal that the individual had the authority to represent the affected employees - S.189(1A).[21]Thus, whether or not an individual has standing to bring a claim in respect of an employer’s failure to observe the requirements of S.188 depends on the type of failure at issue.[22]Where a complaint under S.189 relates to the election of an employee representative, any ‘affected employee’ has standing under S.189(1)(a). However, where employee representatives are appropriately in place a complaint about a failure relating to them can only be brought by them.[23]Section 189(1) is also relevant to the extent of the tribunal’s power to make a protective award for breach of S.188. Such an award may only be made in favour of those who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and in respect of whom a complaint under S.189 has been proved. Since a trade union can only bring a claim in respect of those employees it represents, the protective award which results only benefits those employees — TGWU v Brauer Coley Ltd 2007 ICR 226, EAT. Case No: 3302576/2023 & Others and 2404532/23 10.5 Reserved judgment with reasons – rule 62 March 2017[24]Similarly, if a protective award is made in favour of an individual claimant, it cannot be extended to other employees who, although affected by the employer’s failure to consult, were not party to the proceedings brought by that claimant (Independent Insurance Co Ltd v Aspinall and anor 2011 ICR 1234, EAT)[25]If a tribunal finds that an employer has acted in breach of S.188 TULR(C)A, it must make a declaration to that effect and may make a ‘protective award’ — S.189(2).[26]A protective award is an award of pay to those employees who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and in respect of whom the employer has failed to comply with the requirements of S.188 — S.189(3).[27]The protective award will be calculated by reference to a ‘protected period’, which is of whatever length the tribunal decides is ‘just and equitable’, up to a maximum of 90 days — S.189(4) The rate of remuneration is one week’s pay for each week of the protected period.[28]The award is for a ‘protected period’, beginning with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award (whichever is the earlier), and continuing for however long the employment tribunal decides is ‘just and equitable’ — S.189(4).[29]The Act gives tribunals no guidance as to how to exercise their discretion over the length of the protected period, or whether to make an award at all, except to say that they should have regard to the ‘seriousness of the employer’s default’. However, there is a maximum limit on the protected period of 90 days.[30]In Susie Radin Ltd v GMB and ors the Court of Appeal gave guidance on how tribunals should exercise their discretion under S.189. It noted that S.188 imposes an absolute obligation on employers to consult meaningfully over proposed redundancies, and that S.189 is designed to ensure that such consultation takes place by providing a sanction against a failure to comply. Nothing in the TULR(C)A links the award to any loss suffered by employees. Thus, the focus should be on the employer’s default and its seriousness.[31]The Court in Susie Radin Ltd v GMB and ors condensed the above principles into five factors that tribunals should have in mind when applying S.189:a. the purpose of the award is to provide a sanction, not compensationb. the tribunal has a wide discretion to do what it considers just and equitable, but the focus must be on the seriousness of the employer’s defaultc. the default may vary in seriousness from the technical to a complete failure, both to provide the required information and to consult Case No: 3302576/2023 & Others and 2404532/23 10.5 Reserved judgment with reasons – rule 62 March 2017d. the deliberateness of the failure may be relevant, as may the availability to the employer of legal advice about its obligations under S.188, ande. how the tribunal assesses the length of the protected period is a matter for the tribunal, but a proper approach where there has been no consultation 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.The Facts
[32]All the claims in this action are limited to claims for a protective award pursuant to section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 and more particularly sections 189(1)(a) (relating to a failure to arrange an election of employee representatives or to comply with the rules on elections) and 189(1)(c) (relating to the failure to inform and consult a recognised trade union).[33]The Respondent did have a recognised trade union, namely Unite the Union. The collective bargaining agreement confirms those covered are full time and part time production staff, process staff, warehouse, maintenance and fitters.[34]Management, office staff, administration staff and agency staff are excluded from the collective bargaining agreement.[35]The relevant paragraph of the collective bargaining agreement is 3.1 at page 193 of the bundle.[36]The facts in this case are not in dispute. The administrators of the first respondent have not filed a response and have confirmed they do not object to the stay being lifted and will not be issuing a defence in this matter on behalf of the Company, nor will they be attending any hearing (page 173).[37]The second respondent, the Secretary of State for Business, has filed a response confirming she:a. does not resist the claim (page 163);b. was not present at the events prior to dismissals and is unaware of the circumstances surrounding consultation with employees (paragraph 3 page 169);c. cannot comment on the extent to which, when proposing to make 20 or more employees redundant, the claimants’ employer failed to consult representatives of the affected employees (paragraph 6 page 169-170); andd. holds no information about whether a trade union was recognised by the employer or whether the employees had a genuine opportunity to elect representatives (paragraph 9 page 170). Case No: 3302576/2023 & Others and 2404532/23 10.5 Reserved judgment with reasons – rule 62 March 2017[38]From the contents of the witness statement of Katarzyna Booth (pages 215 - 216) it can be seen that all of the claimants in this action, were employed at (or reported to) the first respondent’s premises at 79 Manton Road, Earlstrees Industrial Estate, Corby NN17 4JL and worked across several factories at this site.[39]The first respondent was a company that manufactured fruit and vegetable juice. It employed approximately 600 employees in total.[40]On the 18 January 2023, the first respondent fell into administration and the majority of Claimants were made redundant with immediate effect on that date without prior notice or consultation, and with other Claimants being notified later of their redundancies up until 21 January 2023.[41]The nature of the first respondent's business meant that employees were spread across 5 factories at the site in Corby. Factories were split between office workers & management staff, production and maintenance staff. Various staff in production and maintenance were also allocated 'team leader' roles and would manage other employees within their teams. All employees across office, management, production and maintenance were made redundant following the first respondent entering into administration.[42]On the 18 January 2023, the majority of employees received an email (pages 218 – 219) inviting them to attend a live-stream conference call that same day. Approximately 300 employees joined this conference call, along with the administrators Grant Thornton UK LLP and some of the directors of the first respondent. It was announced that the first respondent was entering into administration and that all employees were to be made redundant with immediate effect on that date.[43]Most of the claimants received an email (pages 217 – 218) providing a website link to the Government's redundancy support service, and this email further confirmed that a letter regarding the administration would be sent by post to all employees in the next few days.[44]The claimants were therefore dismissed without notice and without any prior warning or consultation.[45]The first respondent failed to consult with Unite the Union before making the redundancies. This is confirmed by Neelam Verma, regional officer of Unite in her witness statement (pages 205-206).[46]As for those claimants who were not covered by the recognition/collective bargaining agreement, Katarzyna Booth confirms in her witness statement that there was no body of representatives appointed or elected by the any of the employees to be consulted in respect of collective redundancies (page 216). This is also confirmed by Csaba Mile in her witness statement (page 214). Application of the law to the facts[47]The claimants were employed at the same establishment at 79 Manton Road, Earlstrees Industrial Estate, Corby NN17 4JL, and were made redundant on or after 18 January 2023. Case No: 3302576/2023 & Others and 2404532/23 10.5 Reserved judgment with reasons – rule 62 March 2017[48]There were more than 20 employees at the establishment.[49]The claimants have presented their claims for a protective award within the statutory time limit.[50]The claimants must be divided into two groups for the purpose of bringing a claim under s189 TULRCA.[51]The first group of claimants are those employees of the first respondent who were not covered by a collective bargaining agreement. No employee representatives were elected in respect of this group in breach of s188 TULRCA. They must therefore bring their claims for a protective award on an individual basis in accordance with s189(1)(a) TULRCA, which they have done. I refer to this group as the Schedule A claimants.[52]The second group of claimants are those employees who were covered by a collective bargaining agreement between Unite the Union and the first respondent, and who must bring their claims for a protective award through their union in accordance with s189(1)(c) TULRCA. I find that Unite the Union did bring a valid claim on their behalf under claim reference 2404532/2023. To the extent that individuals within this group also brought tribunal claims on an individual basis, those individual claims are not validly brought under s189(1)(c) TULRCA.[53]20 or more employees at the establishment were made redundant or placed a risk of redundancy, on or within 90 days of 18 January 2023.[54]The claimants were dismissed during this period without any consultation having taken place in breach of s188 TULRCA.[55]The first respondent has not filed a response. The second respondent has filed a response to assist the tribunal only and has no direct knowledge of events.[56]There is no reason to depart from the principle that protective awards are punitive and should be for the maximum period unless there are circumstance making it just not to do so.