Mr M Chaudhry v Paperchase Products Ltd (in administration) and Secretary of State for Business and Trade: 3309691/2022
EMPLOYMENT TRIBUNALS
Case No 3309691/2022
Between
Mr M ChaudhryClaimantPaperchase Products Ltd (in administration) (R1) Secretary of State for Business and Trade (R2)Respondent
Before
Employment Judge QuillDate 16 April 2023
JUDGMENT
[1]The claim against R1 is struck out. This decision affects case number 3309691/2022 only, and does not affect any other claims that the Claimant has brought against this respondent.[2]The application for a declaration (under section 188(3) of the Employment Rights Act 1996) that R2 ought to make a payment to the Claimant, under section 182 of the Employment Rights Act 1996 fails and is dismissed.
REASONS
[1]The decision and reasons were given orally during the hearing. Written reasons were requested, and these are they.[2]Since I struck out the claim against R1, it is not necessary that I consider the Claimant’s suggestion that the name of R1 be amended. The application was not that the identity of R1 be changed; that is, it was not an application to substitute a Page 1 of 12 different respondent. It was an application to drop the words “(in administration)”, given that the administration ended after the notice of hearing was sent to parties, and after the administrator had replied to that notice. (Bundle Page 987).[3]I agree to the Claimant’s suggestion that the name of R2 should be changed to reflect the reorganisation of government departments announced in February 2023. (I note that the correspondence in the bundle seems to indicate that the Secretary of State’s representatives were content to continue using the department’s former name.)[4]This hearing dealt with case number 3309691/2022 only. It is necessary to mention case number 3306647/2019 as well. However, that case was not before me at this hearing, and nothing I say about it is intended as a formal decision in that case, or to be binding on any judge (including me) who might make decisions about that case in the future.[5]Case number 3306647/2019 included a complaint, by this claimant, Mr Chaudhry, that he had been unfairly dismissed by Paperchase Products Ltd. The alleged dismissal date was on or around 4 October 2018. The claim appears to have been submitted within the relevant time limit. A response was entered which appeared to accept that the Claimant had been an employee, that he had two years’ service, and that he was dismissed. The response suggested the dismissal had been fair and was for conduct. Although neither “Polkey” nor “contributory fault” are mentioned in those express terms, by implication the response makes it sufficiently clear that those would be live issues in the event that a decision to uphold the complaint was made. The Claimant’s list of issues, drawn up later in the litigation, acknowledges that alleged contributory fault would be an issue. (Bundle Page 138).[6]Paperchase Products Ltd went into administration. Administration brings about an automatic moratorium on litigation. The Tribunal did not dismiss or strike out the claim, but imposed a stay. The Claimant was informed that for the claim to continue, he would either need the consent of the administrator or else the permission of the insolvency court. He was warned, in September 2021, that if he failed to obtain either (within six months) then the claim might be struck out on the basis that it was not being actively pursued.[7]The administrator expressly refused consent. The Claimant did not apply to the insolvency court.[8]The Claimant was warned in December 2022 that EJ Maxwell was considering strike out. On around 6 January 2023 (so before the administration ended), the Claimant objected to strike out. The claim was not struck out. It remained stayed. The objection to strike out made no reference to the fact that case number 3309691/2022 also contained a purported claim against R1 (though it did mention that that claim contained an application relating to R2).[9]It emerged at the hearing today (for case number 3309691/2022) that the administration has ended. However, no application to lift the stay in 3306647/2019 (and to hear that case today) had been made. Such an application would have had to have been drawn to the Respondent’s attention by some appropriate method, with Page 2 of 12 a chance for it to comment, before a decision was made. Similarly, if there were to have been a decision to hear 3306647/2019 today, then notice of such a hearing would have had to have been supplied to the Respondent. If the application for the stay to be lifted was to be on the premise that the administration had ended then it would not (necessarily) have been sufficient to send the application to the (on this hypothesis) former administrator. The Claims and The Issues[10]The Claimant seeks a declaration that the Secretary of State ought to make a payment to him of £4826.[11]The basis for this is that, based on age, salary (and statutory cap) and length of service, £4826 is alleged to be the basic award to which the Claimant would be entitled if a tribunal decided that he had been unfairly dismissed.[12]There has been no decision by a tribunal that the Claimant was unfairly dismissed. There has been no decision by a tribunal about what basic award (if any) should be made.[13]The Claimant argues that, in the absence of a tribunal decision which has made an award, 13.1. Section 182 and 184(1)(d) of the Employment Rights Act 1996 (“ERA”) require the Secretary of State: 13.1.1. to make an assessment of an employee’s entitlement to a basic award 13.1.2. in this case, to decide that the Claimant was entitled to £4826 and I should make declaration to that effect 13.2. In the alternative, I should make a decision that the Claimant has been unfairly dismissed, and assess his entitlement to a basic award (or order a remedy hearing for that to be done) and make a declaration that the Secretary of State ought therefore to make the payment as assessed[14]I mentioned that I would also have to consider the appropriateness of case number 3309691/2022 purporting to name R1 as a respondent to an unfair dismissal complaint, taking into account: 14.1. That complaint seemed indistinguishable from the unfair dismissal complaint brought under 3306647/2019 14.2. 3306647/2019 had been stayed and that stay still applied when the new claim was presented. The moratorium, which had been the reason for that stay, was still in force when the new claim was presented 14.3. The complaint was presented about three and a half years after the dismissal Page 3 of 12 The Hearing and The Evidence[15]The hearing was listed for 3 hours. It was entirely remote, by video.[16]The link for the hearing was only sent to the parties (and to me) a few minutes before the intended 10am start time, and so that cause a slight delay. There were some technical issues with the Claimant’s audio, which caused some slight delays. However, notwithstanding these issues, the participants and I were able to communicate fairly easily, and to see and hear each other throughout.[17]Only the Claimant and his representative attended, and nobody from either respondent’s side did so. This was not unexpected, and there was no reason to make further enquiries. The notice of hearing had been sent in December 2022. Secretary of State’s representatives had responded to say that they were relying on the written representations (in the ET3) and were not proposing to attend or submit further documents. The administrator for R1 had responded to say that they had previously declined consent to a claim against R1 proceeding, but, subject to that, were not intending to attend or make submissions.[18]The Claimant’s side provided an electronic bundle of 1030 pages, a witness statement of 31 pages, written submissions of 11 pages, and an authorities bundle of 199 pages.[19]During the initial discussions with the Claimant’s representative, and prior to hearing the Claimant’s evidence, I made clear that, while I would provisionally hear his evidence about the alleged unfairness of the dismissal, it might be my decision that I would strike out the claim against R1, without making a decision on the merits of the complaint against R1. Subject to that, the Claimant swore to his written statement, and answered my questions. There were no supplementary questions, and no re-examination. The Claimant was the only witness. The Findings of Fact[20]R1 entered administration around January 2021, which was after the Claimant’s dismissal, and the presentation of claim and response in claim 3306647/2019, and after a preliminary hearing. It was before the final hearing which had been listed for July 2021. That claim was stayed, and the final hearing postponed.[21]The Claimant submitted a proof of debt form in the administration. The total was £35,880.40, and this was itemised on a schedule of loss document which had been prepared for claim 3306647/2019. That was based on a basic award for unfair dismissal of £4826 and the maximum compensatory award for unfair dismissal. The administrator accepted that debt in full. The Claimant was treated as a creditor for the full amount, and, like other similarly ranked creditors, was paid 2.52% of the debt.[22]In March 2022, the Claimant submitted a claim to the Insolvency Service. He sought “payment of compensation for unfair dismissal under s.184(1)(d) ERA 1996”. (Bundle page 5). He also stated that he sought notice pay (page 3). Page 4 of 12[23]On 20 April 2022, the Secretary of State rejected the claim. The basis for the rejection was said to be: Compensatory Notice Pay under section 184(1)(b) of the Act You are not entitled to this payment because: ● Insolvency Practitioner - We have been unable to verify your employment details with the Insolvency Practitioner. We cannot calculate any payment due to you without this information[24]The notification (pages 17 and 18 of bundle) did not specifically address the claim that had been made for “payment of compensation for unfair dismissal under s.184(1)(d) ERA 1996”.[25]The Claimant’s representative corresponded with both the Insolvency Service and the administrator in relation to the issue about verifying that the Claimant had been an employee of the Respondent. Both the insolvency practitioner and the secretary of state appear to have subsequently accepted that the Claimant had been an employee of R1. In any event, I find as a fact (for the purposes of case number 3309691/2022) that the Claimant was employed by R1 between around November 2010 and around October 2018.[26]In May 2022, the Claimant followed the early conciliation procedure for both R1 and R2. (This was the second time he had done so for R1. This second period of early conciliation was for the same “matter” as the first, namely an alleged unfair dismissal in October 2018.)[27]In July 2022, the Claimant presented a claim against both R1 and R2, and this was allocated case number 3309691/2022. The claim form ticked the box for unfair dismissal, and alleged an unfair dismissal by R1. It made clear that the purpose of the claim was to challenge the Secretary of State’s decision.[28]The claim was not rejected against either respondent, and was sent to both. Only R2 entered a response, which did not accept liability. It made no relevant admissions save that R1 was insolvent. It expressly denied having received a judgment awarding the Claimant a basic award.[29]In subsequent correspondence, with the Respondent, the Secretary of State has (implicitly, at least) admitted that the Claimant was an employee. Although not expressly stated in the 20 April 2022 letter, the Secretary of State has asserted that, in the absence of tribunal judgment, the decision to decline to make any payment for basic award was correct and/or will not be changed. (Email to the Claimant’s representative of 6 March 2023 at 14:39).
The Law
[30]As summarised in Virgin Atlantic v Zodiac Seats [2013] UKSC 46, res judicata is a term which is used to describe a number of different legal principles with different origins. This includes: Page 5 of 12 30.1. Once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is "cause of action estoppel". It prevents a party challenging the same cause of action in subsequent proceedings. 30.2. Secondly, where the claimant succeeded in the first action and does not challenge the outcome, the claimant may not bring a second action on the same cause of action, for example to recover further damages. 30.3. Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given upon it, and the claimant's sole right as being a right upon the judgment. 30.4. Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties. This is sometimes referred to as "issue estoppel". 30.5. Fifth, there is the principle first formulated in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but which could and should have been, raised in the earlier proceedings. 30.6. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles (with the possible exception of the doctrine of merger).[31]Part XII ERA deals with employees’ rights to receive payments from Secretary of State in the event of insolvency of the employer. Section 182 creates three conditions for a payment:(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,[32]In this case, the first two conditions are satisfied, and the dispute is over the third. Section 184 defines the “debt to which this Part applies”. As per Graysons Restaurants Ltd v Jones UKEAT/0277/16/JOJ, the word “debt” does not impose any additional requirement. The definitions of the sums which might be payable are in section 184(1) (a) to (e) respectively, and if a sum does meet one of those five definitions, then it is – thereby – a “debt” to which Part XII applies.[33]The only sub-paragraph of section 184(1) relevant to this dispute is: (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[34]The Claimant also seeks to rely on section 187, and particular: Page 6 of 12 187.— Role of relevant officer. (1) Where a relevant officer has been, or is required to be, appointed in connection with an employer's insolvency, the Secretary of State shall not make a payment under section 182 in respect of a debt until he has received a statement from the relevant officer of the amount of that debt which appears to have been owed to the employee on the appropriate date and to remain unpaid.[35]The relevant officer, in this case, being the administrator.[36]Section 235 ERA sets out various definitions, including: “basic award of compensation for unfair dismissal” shall be construed in accordance with section 118,[37]Section 118 states: 118.— General. (1) Where a tribunal makes an award of compensation for unfair dismissal under section 112(4) or 117(3)(a) the award shall consist of— (a) a basic award (calculated in accordance with sections 119 to 122 and 126, …[38]Section 112 commences: 112.— The remedies: orders and compensation. (1) This section applies where, on a complaint under section 111, an employment tribunal finds that the grounds of the complaint are well-founded.[39]ERA sets out a formula for calculating the maximum basic award. (There are also minimum amounts in some circumstances, none of which are relevant here.) However, a finding that an employee has been unfairly dismissed does not necessarily mean the remedy decision will be that the employee is awarded the amount derived from the formula. For example, there might be a reduction based on the Tribunal’s analysis of the Claimant’s conduct: Section 122(2) ERA.[40]In Graysons Restaurants, it was held that a “debt” within the definition of section 184(1)(a) did not require there to have been a decision by an employment tribunal to decide the specific amount of the “arrears of pay”. That phrase simply referred to the wages which the employee had been lawfully entitled to receive. Equal Pay legislation implies an equality clause into employment contracts, and that implied clause can affect the amount of wages which an employee had been lawfully entitled to receive. The mere fact alone that an employment tribunal had not made a specific decision about the specific effects/consequences of the equality clause did not mean that the Secretary of State, when assessing “arrears of pay” did not have to take account of the existence of that equality clause. At paragraph 62, the EAT stated: I see nothing in the statutory scheme that precludes a claim for arrears of pay arising from a breach of an equality clause implied by statute. Difficulties in quantification of such a claim are irrelevant to the question whether arrears have accrued and give rise to entitlements to be paid. Moreover, the date of success of the equal pay claim does not determine the question whether the arrears were payable and had accrued prior to or coincident with the transfer. Page 7 of 12[41]The Claimant’s representative draws my attention to Jones v Secretary of State for Employment [1982] ICR 389 (EAT). That case was about a claim for a redundancy payment. That is, it was under the provisions that are now contained in Part XI (rather than Part XII) ERA. That case makes clear that, when seeking a declaration against the Secretary of State about entitlement to a redundancy payment, it is not necessary that the claimant has either(i) previously obtained a tribunal decision declaring the employer liable to make a redundancy payment or(ii) joined the employer to the claim brought against Secretary of State.[42]The Claimant’s representative also draws my attention to the UK’s obligations under Directive 2008/94/EC and its predecessor (80/987/EEC), and the interpretation of those obligations, as addressed in the cases referred to in the written submissions and the authorities bundle. Articles 3 and 4 state (in part): Article 3 Member States shall take the measures necessary to ensure that guarantee institutions guarantee, subject to Article 4, payment of employees’ outstanding claims resulting from contracts of employment or employment relationships, including, where provided for by national law, severance pay on termination of employment relationships. The claims taken over by the guarantee institution shall be the outstanding pay claims relating to a period prior to and/or, as applicable, after a given date determined by the Member States Article 4 1. Member States shall have the option to limit the liability of the guarantee institutions referred to in Article 3. Analysis and Conclusions Strike Out Against R1[43]The claim form for 3309691/2022 named R1 as a respondent, and contained a new Early Conciliation Certificate number for R1. The box for “unfair dismissal” was ticked in section8.1 of the form and paragraph 2 of Section8.2 detailed why the Claimant alleged that R1 had unfairly dismissed him.[44]To the extent that any of that is intended to be seen as a claim, against R1, alleging that R1 had unfairly dismissed him, it is simply a duplication of the claim which had already been brought under case number 3306647/2019.[45]It was neither necessary nor appropriate to seek to bring a new claim which exactly duplicated the claims contained within 3306647/2019, given that that claim was stayed, and had not been finally disposed of. Had the earlier claim been finally disposed of, then the purported new claim would almost certainly have been an abuse of process, as offending the res judicata principle. However, that is hypothetical, and the answer might depend on the precise terms of the disposal. In any event, in the precise circumstances of the old claim still being before the Tribunal, Page 8 of 12 then it was an abuse of process to purport to present an identical new claim. I would have reached this conclusion regardless of the reasons that the old claim had been stayed, but the fact that the old claim had been stayed (as the Claimant was aware) because of the statutory moratorium, and the fact that the Claimant had been told that he would need the permission of the administrator or insolvency court to continue with the old claim (and the Claimant knew he had neither) reinforces the view that it was an abuse of process to purport to present an identical claim against R1.[46]For avoidance of doubt, I am not suggesting that the Claimant or his representative were attempting anything underhand. I accept that, in good faith, it was seen as appropriate to complete the claim form in the manner in which they did. The claim form made clear that it was seeking a decision under Part XII, and referred to the old claim. However, the application under Part XII can only be made against Secretary of State, not the employer. Thus R1 did not need to named as a respondent in the new claim form (and nor was early conciliation against it necessary).[47]I therefore strike out, under Rule 37, the claim for unfair dismissal, against R1, under case number 3309691/2022, as an abuse of process. This does not affect 3306647/2019. I am neither suggesting that 3306647/2019 can continue, nor that it cannot. It was not before me today, and I am merely saying that the fact that claim 3306647/2019 was brought means that a duplicate claim for unfair dismissal against R1 cannot be brought.[48]In any event, had I not struck out the claim against R1 under case number 3309691/2022 as an abuse of process, it would have failed (under that case number) because it was brought out of time and (as the existence of claim number 3306647/2019 proves), it was reasonably practicable to bring an unfair dismissal claim against R1 in time. Application against R2[49]I regard this dispute as requiring an interpretation of the statute. The Claimant’s representative is unaware of any appellate decision which specifically addresses one way or the other as to whether section 184(1)(d) requires/enables Secretary of State to make a payment in relation to “basic award” in the absence of an Employment Tribunal decision making a decision about entitlement to such an award as remedy for a (successful) unfair dismissal claim against the employer.[50]However, he argues: 50.1. The wording of the legislation requires such an interpretation 50.2. A purposive approach to the interpretation of Part XII (to give effect to the Directives) requires such an interpretation 50.3. The reference to designated dismissal procedures agreement in section 184(1)(d) shows that a tribunal decision is not required under that sub-paragraph Page 9 of 12 50.4. Grayson makes clear that a (prior) the Tribunal decision is not necessary in order for Secretary of State to have an obligation to make a payment in accordance with section 182 50.5. The administrator accepted the proof of debt for the full amount of the value of the unfair dismissal claim (the maximum basic award, and maximum compensatory award that this claimant could have received from the Tribunal)[51](To the extent that he alternatively argues that I could make a decision today to uphold the unfair dismissal claim against R1 in the Claimant’s favour – regardless of whether remedy for that claim was dealt with today or not – I cannot do that for the reasons mentioned above. I have struck out the unfair dismissal claim against R1 under this case number, and claim 3306647/2019 is not before me today).[52]The power that I have under Section 188 is not a power to order the Secretary of State to re-examine the case and make a fresh decision. The 20 April 2022 formal decision might have been defective in that it rejected the (notice pay) claim on an incorrect basis (that the Claimant had not proven he was an employee) and/or in that it did not comment on the claim for basic award. However, I am not (merely) concerned with whether I agree with the reasons given in that document. For one thing, I can (and must) take account of R2’s arguments raised subsequently for why there is no entitlement to a payment under section 182. Furthermore, and in any event, the wording of section 188(3) is not that I should simply decide whether or not a payment should have been made (in the past tense). Rather, I consider the facts as they appear as of the date of this hearing, and decide whether a payment should be made (future tense). As per Grayson, I could make a decision about entitlement in principle, and leave the assessment of the amount to future determination.[53]However, the part of section 184(1)(d) which mentions “basic award of compensation for unfair dismissal” is a reference to the exact wording of an expression defined in section 235 ERA. The definition make clear (by referring to section 118, which in turn refers to section 112) that it is specifically referring to an award made after the Tribunal has decided that the dismissal was unfair; the expression is not, for example, simply referring to the formula (based on age, salary and length of service) which can be used to calculate the maximum basic award.[54]The fact that the expression is referring to an employment tribunal decision is also confirmed by section 185(b)(iii).[55]The fact that in Grayson or Jones there was no requirement for a tribunal to have made a (prior) decision about the employer’s liability does not assist the Claimant, as those cases are distinguishable and deal with different statutory provisions. 55.1. Under section 184(1)(a), the expression “arrears of pay” is not one which is defined by reference to there having been a (prior) employment tribunal (or court) decision determining the amount of the “arrears of pay”. The requirement to assess the “arrears of pay” simply falls on Secretary of State, and the Tribunal has the ability, under section 188(3), to make a declaration if it decides that the arrears were higher than those assessed by Secretary of State. Page 10 of 12 55.2. The provisions in Part XI, in sections 166 and 167 and 168, for payments by Secretary of State make clear that the obligation is on the Secretary of State to assess entitlement in accordance with Part XI (just as the obligation is first and foremost on the employer). The obligations include that, unless the contrary is proved, the dismissal should be presumed to be by reason of redundancy. There is the opportunity (but not the obligation) to make a reference to the Tribunal under section 170 ERA.[56]The “debt” defined by section 184(1)(d) is defined differently, and by reference to the tribunal’s decision on an unfair dismissal complaint against the employer.[57]The reference in section 184(1)(d) to “award under designated dismissal procedures agreement” does not assist the Claimant. These are defined in section 110 ERA, and the consequences are set out, where applicable, elsewhere in ERA. The Claimant does not assert that he had an entitlement under a designated dismissal procedures agreement, and the argument that, had he had such an entitlement, then section 182 would not require there to have been an employment tribunal to that effect, is irrelevant. The actual entitlement that he is asserting is different, and it is under the part of section 184(1)(d) which refers to “any basic award of compensation for unfair dismissal”.[58]There would be nothing, in principle, to prevent the same claim form being used for(i) an unfair dismissal claim against employer and(ii) a Part XII claim against Secretary of State. [However, for the former to succeed, it would have to meet the requirements of (amongst other things) being in time, etc.] There would be nothing in principle, to prevent the same tribunal hearing first of all deciding that the employer was liable to make a basic award and then, that therefore the Secretary of State ought to make a payment. Put another way, the fact that there had been no tribunal decision at the time the Secretary of State refused to make the payment would not, in itself, mean that the application for a declaration under Section 188 must fail. However, the combined effect of section 182 and 184(1)(d) is that: 58.1. The Secretary of State is obliged to make a payment for the basic award for unfair dismissal where an employment tribunal has made a decision (on a complaint brought under section 111 ERA) that the Claimant was unfairly dismissed AND a remedy decision (under sections 118, 119, 122 ERA, and other sections when applicable) that the Claimant was entitled to a specified sum for basic award. 58.2. The Secretary of State is not obliged to make a determination about the merits of an unfair dismissal argument, or deal with section 122(2) considerations (or any other provisions for determining the amount of a basic award). 58.3. The Secretary of State is not obliged to make a payment of a sum equivalent to the sum which the Secretary of State determines a Tribunal would have been likely to award, had a tribunal decided a claim against the employer on the merits.[59]The argument that the administrator accepted the proof of debt is not relevant for two reasons. Firstly, it is my decision (for the reasons set out above), that the expression “basic award of compensation for unfair dismissal” exclusively refers to a decision Page 11 of 12 made by the Tribunal. Secondly, section 187 does not mean that Secretary of State (or the Tribunal) is bound by any decisions made by the administrator; it simply imposes obligations on the administrator to supply information (if requested) and entitles Secretary of State to defer decisions under section 182 pending receipt of that information. [For avoidance of doubt, I do not necessarily accept that unconditional agreement to accept the full amount sought by the Claimant in claim number 3306647/2019 as a debt in the administration would have amounted, but for the stay, to a formal concession that there had been an unfair dismissal. However, since the litigation against R1 was stayed, the point is academic.][60]The arguments based on the Directive do not assist the Claimant. There is nothing inconsistent with the requirements of the Directive that the member state is only obliged to reimburse the employee for the debts of the insolvent employer (or former employer) in certain circumstances. Had the Claimant been dismissed by reason of redundancy, the entitlement to that severance payment can be assessed without a decision by the Tribunal (with decision by the Tribunal being available where necessary, in the event of dispute). Similarly, a decision about the (correct amount for) “arrears of pay” can be assessed without a decision by the Tribunal (with decision by the Tribunal being available where necessary, in the event of dispute). However, unfair dismissal rights are exclusively a creation of statute, and exclusively within the jurisdiction of employment tribunal. See Johnson v Unisys Limited [2001] UKHL 13. There is no undermining of the protection for employees by the fact that entitlement to a basic award is something that can be exclusively determined by the Tribunal, in a claim against employer, in accordance with the provisions of Part X ERA.[61]The Claimant was, of course, prevented from having a decision on the merits of the claim against the employer by the combined effects of(a) the statutory moratorium and(b) not having either the consent of the administrator or the permission of the insolvency court and(c) the stay. However, the legislation did provide him with the option of applying to the insolvency court (given that he tried, and failed, to persuade the administrator to give consent). I accept that the Claimant might have had good reasons for not pursuing that option (namely the costs of so doing), but the fact is that the option did exist. The UK has not implemented a complete ban on employees obtaining unfair dismissal awards against employers who are in administration; it has simply imposed conditions. In those circumstances, I am not persuaded that the UK has failed to implement the Directive and/or that I should read section 184(1)(d) as if it said “an amount equivalent to a basic award of compensation for unfair dismissal...”.