Ms M Forteath and others v Forth Care Ltd (in Liquidation): 4113735/2021 and others
REASONS
& others and Rules of Procedure) schedule as per multiple complaint(s) ref 4100138 Not represented Not present Respondents Solicitor Mr P Kissen - Represented Claimants was sent to the Regulations and by: On 16 May 2022 t the members and creditors of the respondent placed the the could properly be made without a hearing as to the liability of the respondent for The remedy to which the claimant is entitled for the claim will be determined by an Kenneth Wilson Pattullo and Kenneth Robert Craig were appointed joint liquidators. The liquidators The Employment Judge decided that on the available material a determination of entering proceedings and there are no funds in the liquidation to satisfy the claims. to the claimants that they have no intention respondent was placed into Creditors’ Voluntary liquidation. Employment Judge at a hearing if required. the claim but not in respect of the remedy. 13 July 2022 14 July 2022 M Kearns , have indicated JUDGMENT OF THE EMPLOYMENT TRIBUNAL Rules 70 – 72 of the Employment Tribunal Rules of Procedure 2013 The Judgment of the Employment Tribunal is that upon reconsideration in terms of rule 72, ground (b) of the original decision dated 13 July 2022 is revoked and the following decision substituted: (b) The Employment Tribunal declares well founded the claimants’ complaint that the respondent has failed to comply with its obligations under Sections 188A and 188 of the Trade Union & Labour Relations (Consolidation) Act 1992. The Employment Tribunal makes a protective award under Section 189 of that Act in favour of the respondent’s employees who were all made redundant on 1 September 2021 and orders the respondent to pay appropriate remuneration to the claimants for the protected period namely for 90 days starting on 1 September 2021. REASONS[1]At a hearing on 12 July 2022, the Tribunal determined that it was satisfied that on the available material a determination could be made that the respondent was liable for the various claims lodged. A Judgment was issued on 13 July 2022 in the following terms: “The judgment of the Employment Tribunal is that the claimant’s complaints of(a) unfair dismissal;(b) protective award under section 189 of Trade Union and Labour Relations (Consolidation Act) 1992;(c) redundancy pay;(d) holiday pay;(e) arrears of pay; and(f) notice pay succeed. The remedy to which the claimant is entitled will be determined at a hearing if required.”[2]By email dated 5 August 2022 the claimants made an application under rules 70 – 71 of the Employment Tribunal Rules of Procedure 2013 for reconsideration of the Judgment in relation to ground (b). The claimants’ solicitor submitted that although the remedy for claims for unfair dismissal, redundancy pay, holiday pay, arrears of pay and notice pay could all be determined by the Redundancy Payments Service, the remedy for the protective award could not be so determined. He stated that the claimant would be unable to use the original decision to obtain remuneration from the Redundancy Payments Service. He submitted that it was an undefended position that the respondent had dismissed the claimants without consulting in any way the appropriate representatives of the affected employees. There are therefore no mitigating circumstances and the full 90 day protective award should be made. He argued that it was in the interests of justice to reconsider the judgment to make a protective award, state the protective period and determine its length.[3]The application for reconsideration was made outside the 14 days specified in rule 71. The claimants’ solicitor argues that it would nevertheless be in line with the over-riding objective to avoid unnecessary delays and complexity in the proceedings for the Tribunal to reconsider the Judgment in the way proposed rather than determine the protective award at a future hearing on remedy as indicated in the original decision. I am persuaded that this course of action would be in line with the over-riding objective of dealing with cases justly; avoiding delay, saving expense and dealing with cases in a way that is proportionate to the complexity of the issue. It is also in line with the over-riding objective to extend time under rule 5 to enable this to happen.[4]In the circumstances I have revoked paragraph (b) of the original decision and substituted the protective award as set out above. Employment Judge: M Kearns Date of Judgment: 16 August 2022 Multiple Schedule Multiple: 4100138 - Forth Care Ltd Case Number Case Name 4113735/2021 Mary Forteath -v- Forth Care Ltd (In Liquidation) 4113736/2021 Ms agrineth gugu nkosi -v- Forth Care Ltd 4113737/2021 Ms mary forteath -v- Forth Care Ltd 4113738/2021 Ms grace rae -v- Forth Care Ltd 4113739/2021 Ms anne mcilroy -v- Forth Care Ltd 4113740/2021 Mr darren martin -v- Forth Care Ltd 4113741/2021 Mr andrew donald -v- Forth Care Ltd 4113742/2021 Mr balwinder singh -v- Forth Care Ltd[5]At the hearing by Cloud Video Platform on 22 August 2023, Mr Kissen submitted that the application for reconsideration of the Judgment was necessary because a discrepancy had emerged regarding the dates of dismissal of four of the claimants and it had not been possible to resolve the issue by agreement between the parties.[6]Mr Kissen produced a copy of the email from the RPS to himself, dated 20 February 2023 in which the RPS stated: “2. Employment termination dates provided by Insolvency Practitioner (IP) and claimants differ to Tribunal award M Forteath - Claimant and IP confirm employment termination date - 28/8/2021 and not 1/9/2021 as per Tribunal award G Rae - Claimant and IP confirm employment termination date - 31/8/2021 and not 1/9/2021 as per Tribunal award A Donald - Claimant and IP confirm employment termination date - 29/8/2021 and not 1/9/2021 as per Tribunal award B Kaur Singh - Claimant and IP confirm employment termination date - 1/8/2021 and not 1/9/2021 as per Tribunal award”[7]Mr Kissen requested that the Judgment dated 16 August 2022 be varied to show the correct dates of dismissal of the four claimants named in the RPS email. He submitted that it was in the interests of justice for the Judgment to be reconsidered as it would address a purely administrative discrepancy and enable the claimants to receive the remuneration to which they are entitled. I accepted this submission and have varied the Judgment accordingly.[8]As Mr Kissen submitted, the variation requested would also affect the date of the start of the protected period. S189(4) TULRCA provides that: “The protected period— (a) begins with the date on which the first of the dismissals to which the complaint relates takes effect…”[9]He submitted - and I accept - that as the first of the dismissals is now known to be that of Balwinder Kaur Singh whose dismissal for redundancy took effect on 1 August 2021, the protected period must therefore also begin on that date. It is, in my view, in the interests of justice to vary the month in line 7 paragraph (b) of the Judgment from “September” to “August” so that the Judgment now correctly . Employment Judge: M Kearns Date of Judgment: 23 August 2023 Multiple Schedule Multiple: 4100138 - Forth Care Ltd Case Number Case Name 4113735/2021 Mary Forteath -v- Forth Care Ltd 4113736/2021 Ms Agrineth Gugu Nkosi -v- Forth Care Ltd 4113737/2021 Ms Mary Forteath -v- Forth Care Ltd 4113738/2021 Ms Grace Rae -v- Forth Care Ltd 4113739/2021 Ms Anne Mcilroy -v- Forth Care Ltd 4113740/2021 Mr Darren Martin -v- Forth Care Ltd 4113741/2021 Mr Andrew Donald -v- Forth Care Ltd 4113742/2021 Mr Balwinder Kaur Singh -v- Forth Care Ltd