Mrs L Carbis and others v Peacocks Stores Ltd (In Administration) and Secretary of State for Business, Energy and Industrial Strategy: 4108833/2021 and others
Mrs L CarbisClaimantPeacocks Stores Ltd (In Administration) and Secretary of State for Business, Energy and Industrial StrategyRespondent
Before
Employment Judge N M HosieDate 2 March 2022
JUDGMENT
[1]the Judgment dated 23 December 2021, insofar as it relates to Mrs Rebecca Everitt (Case No. 4108846/21), is revoked;[2]the first respondent, Peacocks Stores Limited, acted in breach of its obligations in terms of s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992; and[3]the first respondent, Peacocks Stores Limited, should pay a protective award of 90 days’ remuneration to each claimant, in terms of s.192 of the 1992 Act.
REASONS
[1]The claimants sought protective awards, in terms of s.189 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”). The first respondent is in administration. By letter dated 10 May 2021 to the claimants’ solicitors, the Administrators advised that they consented to these proceedings. The second respondent submitted an ET3 Response Form but advised that the claims were “neither supported nor resisted” and that the Secretary of State did not propose to be represented in person at any future hearing of this case. Nevertheless, I had regard to the terms of the Response Form in arriving at my decision. Mrs Rebecca Everitt Case No. 4108846/21[2]On 23 December 2021, D Ellison, Legal Officer, issued a Judgment dismissing a number of claims. The claim number 4108846/21 by Mrs Rebecca Everitt was dismissed in error. Accordingly, with reference to Rule 70 in Schedule 1 of the Rules of Procedure, on the application of the claimant’s solicitor, I reconsidered the Judgment and decided that it should be revoked but only in respect of Mrs Everitt’s claim number 4108846/21.
Hearing
[3]At the Hearing, which was conducted remotely by video conference using the Cloud Video Platform (“CVP”), I heard evidence from three claimants, namely James Marshall, Alison Roach and Sarah Armstrong. They spoke to witness statements which were included in the bundle of documents which had been submitted by the claimants’ solicitor (C261-265). Each of the witnesses gave their evidence in a measured, consistent and convincing manner and presented as credible and reliable. Further witness statements were included in the bundle (C.266-275). These were consistent and corroborative. I had no reason to doubt their accuracy.[4]I was also satisfied that these claims by each of the claimants were competent in terms of s.189(1)(d) of the 1992 Act. Findings in fact[5]Having heard the evidence and considered the documentary productions, I was able to make the following findings in fact, relevant to the issues with which I was concerned. Mr Marshall was employed at the first respondent’s Head Office in the Marketing and Customer Services Department. Although he was involved in so-called consultation meetings at the Head Office, it was clear there was no meaningful consultation. These were consultation meetings, in name only.[6]I was taken to the Minutes of certain consultation meetings such as the first one on 16 October 2020 (C104-110). Questions posed to the first respondent’s representatives were not answered in any meaningful way, the standard answer being “We don’t know what will be happening” and the like.[7]This theme continued throughout all the meetings. For example, the Minutes of the meeting on 23 October record, typically, the following exchanges and questions posed by Michael Hogg (C.117):- “4. Are staff that are being made redundant required to return to the office on the 2nd November?” Answer: 4. As advised in 1st meeting we cannot answer that at the moment as we do not know where the company will be. 5. On the document sent out from HR, the word is ‘proposed’ what does this really mean and who is proposing to who?” Answer: 5. This is the company proposal. We say ‘proposed’ as no final decisions have been made, the collective consultation meetings and individual meetings are an opportunity for employees to offer alternative proposals to ways to avoid redundancy or the number of redundancies.”[8]Regrettably, there were no such “proposals”. This led to a sense of frustration on the part of the claimants, as can be seen from the following exchange recorded in the Minutes of the meeting on 30 October 2020 (P.143):- “40. When do you intend to give answers to the questions that you reply with -CANNOT ANSWER AT THIS TIME ?” Answer: 40. As soon as we are able to provide an answer we will, where we cannot provide answered (sic) sometimes it is impossible to answer that at this time or to give a date when it can be answered.”[9]I find in fact, therefore, there was no meaningful consultation at Head Office despite the Minutes of various meetings.[10]Further, so far as the other stores were concerned there was no consultation whatsoever.[11]I am satisfied, therefore, there was no consultation with any of the claimants, as required in terms of the 1992 Act.[12]Each of the claimants was dismissed because of redundancy in terms of s.139 of the Employment Rights Act 1996, on various dates between 4 December 2020 and 2 March 2021, such terminations taking immediate effect.[13]The first respondent Company went into administration on 26 November 2020. Thereafter the standard response from the first respondent to questions posed by the claimants was “speak to the administrators” (see P.156, for example). However, none of the claimants had any meaningful discussions with the administrators either. Special circumstances[14]I then went on to consider whether, in terms of s.188(7) of the 1992 Act, there were special circumstances which rendered it not reasonably practicable for the first respondent to comply with its obligation to consult. As was said in Clarks of Hove Ltd v. Bakers’ Union [1978] ICR 1076 a “special circumstance” requires there to be something “exceptional”, “out of the ordinary” or “uncommon”. Redundancies are the consequence of adverse financial circumstances leading to insolvency. That was the case here. Insolvency itself is not “exceptional” or “out of the ordinary”. There were no “special circumstances” in the present cases in my view.[15]I was satisfied, therefore, that the first respondent Company failed to comply with the requirements of s.188 of the 1992 Act in that it failed to consult and I shall make a declaration to that effect in terms of s.189(2).[16]Section 189(2) also provides that in addition to making such a declaration, a Tribunal “may also make a protective award”. As I understand it, that issue, and the basis upon which any such award is calculated, is entirely a question for the Tribunal. In reaching my decision, I was assisted by the guidance of the Court of Appeal in Susie Radin Ltd v. GMB & Others [2004] IRLR 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 the employer’s default, which may vary from the 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 the ‘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.”[17]In the present cases, the claimants were afforded no opportunity of proposing alternative measures which might have avoided or reduced the need for their redundancies or which might have enabled alternative work to be found. The questions which they raised in this regard were never properly answered. In my view, therefore, there were no mitigating circumstances which would justify a reduction in the maximum period. I decided, therefore, in all the circumstances, that it would be just and equitable to make a protective award for a period of 90 days, starting with the various dates between 4 December 2020 and 2 March 2021 when the claimants’ employment was terminated, with immediate effect.[18]For the avoidance of doubt, I attach Schedules with details of the claimants and the “establishments” where each of them was employed. I am satisfied that 20 or more employees were made redundant at each of these establishments. Schedule 1 – Head Office Schedule 2 – Warehouse and Distribution Centre Schedule 3 – Liverpool Bootle Store Schedule 4 – Middlesbrough store[25]Schedule 5- Worthington store Schedule 6 – Sunderland store Schedule 7 - Sunderland store 2018 Schedule 8 - Boston Retail Park Schedule 1 – Head Office Mrs Linda Carbis Mr Robert Cole Mr Gavin Coles Miss Tracy Cooper Miss Anna Cozens Mrs Katie Cullen Miss Emma Davies Miss Katrina Dennis Mr Paul Evans Miss Kaci Felce Miss Karen Frain Miss Tasha Heal Mr Mark Hedley Mr Marc Holley Mrs Sarah Jones Miss Hannah Law Mr James Marshall Miss Claire Masters Ms Helen McDonald Miss Cerys Morgan Mr Philip Myerscough Miss Hannah Ould Mrs Donna-Marie Rawle Ms Kay Robinson Miss Rebecca Samuel Mrs Georgoulla Shoukri Mr Stephen Thrush Miss Joan Tumelty Mr Andrew Wakeham Miss Nicola Wheeler Mr John Williams Mr Jason Winney Miss Katrina Dennis Miss Tracy Cooper Miss Anna Cozens Miss Hannah Law Miss Nicola Wheeler Miss Claire Masters Miss Kaci Felce Miss Tasha Heal Miss Elinor Thompson Mr David Kernick Schedule 2 – Warehouse and Distribution Centre Mrs Alison Roach Mr Ian Morgan Mr Paul Yoxall Miss Paula Evans Mr Stephen Cummings Schedule 3 – Liverpool Bootle Store Tittle First Name Surname Miss Sarah Armstrong 15 Schedule 4 – Middlesbrough store Miss Kirsty Heminsley Schedule 5- Worthington store Tittle First Name Surname Mrs Louise Southwood Schedule 6 – Sunderland store Mr John Tumelty Schedule 7 - Sunderland store 2018 Tittle First Name Surname Mrs Amy Chilvers Miss Elinor Thompson Mr Mark Jones Mrs Simona Pitaru Miss Elinor Thompson Schedule 8- Boston Retail Park Miss Claire Oliver Miss Gurjot Kaur Mrs Jayne Marron Miss Mandy Wise Mr Mark Woolliscroft Miss Stephanie Mann CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 In accordance with the power set out in Rule 69 of the Employment Tribunal Rules of Procedure 2013, I hereby correct the clerical mistake(s), error(s)or omissions(s) in the Judgment sent to the parties on 2 March 2022: Remove – Ms Julie Snell (Case No. 4108876/2021); Mrs Kerry Clements (Case No. 4108838/2021); Miss Lauren Lamley (Case No. 4108858/2021); Miss Nicola West (Case No. 4108889/2021) from the list of claimants. An amended version of the Judgment is attached. Important note to parties: Any dates for the filing of appeals or reconsideration are not changed by this certificate of correction or the amended Judgment or Case Management Order. These time limits still run from the date of the original Judgment or Case Management Order, or if reasons were provided later, from the date that those were sent to you.