Mr A C Miller and D Colman v Rhys Davies and Sons Ltd (In Adminstration): 4108754/2021 and 4108755/2021

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4108754/2021, 4108755/2021

Between

Mr A C Miller and D ColmanClaimant

Rhys Davies and Sons Ltd (In Adminstration)Respondent

Before

Employment Judge M Whitcombe

Date 16 July 2021

JUDGMENT

The Employment Judge has decided to issue the following judgment on the available material under rule 21.

[1]The claimants are entitled to bring this claim because none of the situations in s.189(1)(a), (b) or (c) of the Trade Union and Labour Relations (Consolidation) Act 1992 apply and the claimants were both employees dismissed as redundant.

[2]No response was presented to this claim within the applicable time limit.

[3]The respondent is in administration but the administrator consented to the continuation of these proceedings in an email dated 12 July 2021.

[4]The complaint that the respondent failed to comply with requirements of section 188 and section 188A of the Trade Union and Labour Relations (Consolidation) Act 1992 is well founded.

[5]The respondent dismissed as redundant more than 20 employees at one establishment within a period of 90 days or less.

[6]The respondent failed to ensure that employee representatives were elected in accordance with s.188A, and then to consult with them in accordance with s.188.

[7]The Tribunal makes a protective award in respect of both claimants and the respondent is ordered to pay remuneration for the protected period. The protected period begins with 8 December 2020 in Mr Colman’s case and 23 December 2020 in Mr Miller’s case and is for 90 days in each case. RECONSIDERATION JUDGMENT The Tribunal grants the application for reconsideration submitted under cover of the claimant’s agent’s email of 22 November 2021 supplemented by the email of 17 January 2022, it being necessary in the interests of justice to reconsider the Tribunal’s judgment dated 16 July 2021 . The date of dismissal of the claimant is amended from 23 December 2020 (as set out in the judgment dated 16 July 2021) and replaced with 22 December 2020. The remainder of the judgment stands.

REASONS

[1]By judgment dated 16 July 2021 the Employment Judge declared that the claimant was entitled to a protective award, the requirements set out in section 188 and 188A of the Trade Union and Labour Relations (Consolidation) Act 1992 having been satisfied.

[2]There had been no response to the claim and the administrator had consented to the continuation of the proceedings.

[3]The date of dismissal of the claimant had been stated by the claimant to be 23 December 2020 which was the date set out in the judgment for the purposes of a protective award.

[4]The claimant’s agent by email of 22 November 2021 supplemented by the email of 17 January 2022 asked that the judgment be reconsidered there having been an error as to the claimant’s date of dismissal.

[5]The original dismissal date of 23 December 2020 was incorrect. The claimant had erred in communicating that date to the solicitor who proceeded with the claim. The correct date of the claimant's dismissal was 22 December 2020.

[6]In terms of rule 72(3) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 consideration of an application to reconsider a judgment should be made by the Employment Judge who made the decision unless it is not practicable to do so in which case the Vice President shall appoint another Employment Judge to deal with the matter. In this case it was not pracitcable for the original Employment Judge to deal with the application and I was appointed to consider the application by the Vice President.

[7]The application had not been refused under rule 72(2) and in all the circumstances having considered the facts in this case I considered it necessary in the interets of justice to grant the application.

[8]It is necessary in the interests of justice to reconsider the judgment that was issued to correct the date of dismissal from 23 December 2020 to 22 December 2020. Case No: 4105098/2020 Page 3

[9]The application to reconsider the judgment is therefore granted and the date of dismissal is altered from 23 December 2020 to 22 December 2020. The remainder of the judgment stands.