Mr J Carver and others v T Graham & Sons (Builders) Ltd (in Liquidation): 4118074/2018 and others
JUDGMENT
OF THEEMPLOYMENT TRIBUNAL The judgment of the EmploymentTribunal is that: (1 ) the respondent has failed to comply with the requirements of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 and the employment tribunal makes a declaration to that effect in respect of each of the claimants; (2) each of the claimants is entitled to a protective award and under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 the respondent is ordered to pay remuneration to each of the claimants for the protected period of 90 days beginning 31 May 2018.REASONS
[1]In this case, each of the claimants presented a claim to the Employment Tribunal seeking a protective award. 4118074/2018 & others Page 3[2]On 1 June2018,a provisionalliquidatorwasappointed of the respondentand subsequently an interim liquidatorwas appointed.[3]On 23 May 2018, the Sheriff at Dumfries Sheriff Courtgranted leave for the claimants to proceed with their claims against the respondent.[4]At the hearing,no appearance was made for the respondentwho had been given notice of the hearing on 20 August 2019. No adjournment was requested or reason for non-attendance given. The ET3 lodged for the respon dentsimply in dicated th at con sent of th e cou rt was requ ired to proceed with the claims.Under rule47 of the EmploymentTribunalRulesof Procedure 2013, it was considered appropriate to proceed with the hearing.[5]Evidence was given by Stephen Elliot and William Cameron two former employees of the respondent. An Inventory of Productions paginated 1 -85 was also produced. From the evidence given and documents produced, I was able to make findings i n fact. Findings in fact[6]The respondentwas a building company operating in Dumfriesshire. They were based at Henry Street, Langham and from there organised labour to work at various building sites.[7]The respondent employed over 35 employees. On 31 May 2018 all the employees were advised that the company was to cease trading with immediate effect[8]Some employees were advised of this at the Henry Street base; others were asked to return to the Henry Street base i n the course of the day to be given this information.[9]All employees were dismissed on 31 May 201 8 by reason of redundancy. No consultation or attempt at consultation with the employees was made prior to intimation of termination of employment as at 31 May 2018. 4118074/2018 & others Page 4 1 0. By letter of 7 June2018, the provisional liquidatorofthe respondentnoted the employees dismissal with effect from 31 May 2018 and advised how claims be made for redundancy pay and wages in lieu of notice.Conclusions
[11]In terms of section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A, where an employer proposes to dismiss as redundant 20 or more employees at an establishmentwithinaperiodof90 days or less, the employer shall consult aboutthe dismissals.[12]The consultation period if between 20 and 100 employees are affected should be 30 days. Th e pu rpose of the con su Itation is about ways to avoid or redu oe or mitigate the effect of the dismissals.[13]I accept that the employees in this case were all employed at an establishment namely the respondent’s base at Henry Street, Langham. I accept that at least 35 employees were made redundant on 31 May 2018. No consultation was attempted in this case and so there was a breach of section 188 of TULR(C)A.[14]Where a tribunal finds th ere has been a breach of section 188, then it shall make a declaration to that effect and a protective award.[15]In the circumstances, each of the claimants is entitled to a protective award. That award under section 189 (4) of TULR(C)A begins with the date of dismissal and the protected period should be of such length as the tribunal determines “to be just and equitable i n all the circumstances having regard to the seriousness of the employer’s default... but shall not exceed 90 days."[16]In this case, there was no evidence of the respondent seeking to comply with the provisions of section 188. In solvency has been held not to amount to any 'special reason’ why consultation could nottake place. A protective award is punitiveand not compensatory and in the absence of any evidence as to a reason fornon-compliance.lconsidertheprotected period i n this case should be 90 days from 31 May 2018. 4118074/2018 & others Page 5[17]Each of the claimants is entitled to remuneration for the protected period and an order is so made.