Ms E Ferrier v Secretary of State for Business and Trade: 4102577/2024
JUDGMENT
The Judgment of the Tribunal is that:-(1) the claimant’s former employer, Hendrie Legal Limited, failed to consult with the claimant as a person who may be affected by proposals to dismiss, or measures taken in connection with the dismissal of 20 or more employees, in breach of s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992; ETZ4(WR)(2) the respondent in these proceedings, namely the Secretary of State for Business and Trade, shall pay remuneration to the claimant for a protected period of 90 days beginning on 28 March 2023; and(3) the respondent shall pay to the claimant a Protective Award of Five Thousand Eight Hundred and Seventy Five Pounds (£5,875), subject to the limits set by s. 184(1)(a) of the Employment Rights Act 1996.REASONS
[1]On 26 July 2023, the claimant, Ms Emma Ferrier, submitted a claim form (Case No: 4103936/2023) in which she brought various complaints against her former employer, Hendrie Legal Limited (“Hendrie Legal”), which was insolvent.[2]On 19 September 2023, Judge Cowen issued an “Amended Judgment” in that case in the following terms:- “For the reasons given in the oral judgment;[1]The claim under case number 4104158/2023 is a duplicate and therefore dismissed upon withdrawal.[2]The claimant’s claim for unlawful deduction of wages, breach of contract, unpaid holiday pay and a Protective Award are successful.[3]The respondent shall pay the claimant £8,238.01 in total, comprising of:-a. Wages owed and unpaid and breach of contract – £2,001.48b. Unpaid holiday pay £361.53c. Protective Award of 90 days, commencing on 28 December 2022, at £451.92 per week; amounting to £5,875” 3. When payment from Hendrie Legal was not forthcoming, the claimant applied for payment of the sums awarded to her in the Judgment to the Secretary of State, in terms of s.182 of the Employment Rights Act 1996 (“the 1996 Act”). When no payment was received, the claimant’s solicitor instituted the present claim, in terms of s.188 of the 1996 Act.[4]By the time the case called before me for a Hearing the Secretary of State had made payments to the claimant in respect of unpaid wages, breach of contract and holiday pay. However, no payment had been made in respect of the Protective Award.[5]A Protective Award is a two-stage process. At the first stage, in proceedings against the insolvent, former employer (in the present case, Hendrie Legal) the Tribunal should not make a financial award but gives Judgment that the claimant is entitled to a Protective Award. The claimant must then seek payment from the Secretary of State. Failure to pay, or any dispute as to the amount payable, then becomes a matter for a further separate claim under s.188 for payment of the Award.The Evidence
[6]I heard evidence from the claimant, Ms Ferrier at the Hearing. She gave her evidence in a measured, consistent and convincing manner and presented as credible and reliable. The respondent had intimated prior to the Hearing that it did not intend calling evidence but that it would rely on the response form which had been submitted.[7]Helpfully, in advance of the Hearing, the claimant’s solicitor had submitted a bundle of documentary productions (“P”).The Facts
[8]Having heard Ms Ferrier’s evidence and considered the documentary productions and the terms of the respondent’s response form (P19-31), I was able to make the following findings of fact, relevant to the issue of the Protective Award, with which I was concerned.[9]Ms Ferrier was employed by Hendrie Legal, latterly as a “Post Settlement Coordinator”, from 1 July 2022 to 27 March 2023. Her employment was terminated with immediate effect on 28 March 2023 by reason of redundancy following the insolvency of Hendrie Legal and the appointment of a Judicial Factor.[10]There was no consultation whatsoever with Ms Ferrier prior to her dismissal.[11]There were more than 20 employees working at the registered office of Hendrie Legal, located at Murrayburgh House, 17 Corstorphine Road, Edinburgh, EH12 6DD. Not only did I hear evidence about this from Ms Ferrier, this was confirmed in an email from the Law Society to the claimant’s solicitor on 25 July 2023 (P77) and a letter dated 14 August 2023 from the Judicial Factor to the Employment Tribunal (P79-81 and at P81 in particular).[12]There was no recognised trade union or elected employee representatives at Hendrie Legal. Discussion and Decision[13]I am satisfied that Ms Ferrier is eligible to bring this claim.[14]It was clear why Employment Judge Cowen had made a Protective Award, although the commencement date should have been 28 March 2023, the effective date of termination of Ms Ferrier’s employment, rather than 28 December 2022.[15]With reference to s.188(7) of the Trade Union and Labour Relations (Consolidation) Act 1992 there was no evidence to suggest that there were “special circumstances” which rendered it not reasonably practicable for Hendrie Legal to comply with its duty to consult.[16]It was clear that Hendrie Legal had failed completely to comply with the requirements of s.188. Protective Award[17]It was also clear why Employment Judge Cowen had made a Protective Award of 90 days. That was entirely a question for her. However, she was no doubt assisted by the guidance of the Court of Appeal in Susie Radin Ltd v GMB and others [2004] IRL 400: a Tribunal in exercising its discretion to make a Protective Award, and for what period, should have regard(1) to the purpose of the award as a sanction for breach by the employers of their obligations to consult;(2) to exercise of the Tribunal’s discretion to do what is just and equitable while focusing on the seriousness of an employer’s default, which may vary from technical to a complete failure, as here, to provide any of the required information and to consult and(3) to adopt what Lord Justice Gibson described as a “proper approach” in a case where there has been no consultation by starting with the maximum period and reducing it only if there are mitigating circumstances justifying a reduction (my emphasis).[18]In the present case, Ms Ferrier had no opportunity of proposing alternative measures which might have avoided or reduced the need for her redundancy or which might have enabled alternative work to be found. There was no evidence of any mitigating circumstances which would justify a reduction in the maximum period. The Protective Award[19]There was included in the bundle of documents copies of Ms Ferrier’s payslips which included her last payslip dated 28 February 2023 (P126).[20]Her monthly salary was £1,958.33 which equates to £451.92 per week. The Protective Award is £5,874.96 (13 weeks’ pay x £451.92), rounded up to £5,875, in accordance with Judge Cowen’s Judgment. This sum should now be paid by the respondent to her.[21]However, as the respondent brought to the Tribunal’s attention in its response form, I am mindful, that the payment by the respondent is subject to the limits set by s.184(1)(a) of the Employment Rights Act 1996. S.184(2)(d) which states that remuneration under a Protective Award, in terms of s.189 of the Trade Union & Labour Relations Act 1992 “be treated as arrears of pay”.[22]There is no recoupment here as Ms Ferrier did not receive any benefits following her dismissal.