Mr S Mpemba v Hinton Skips UK Ltd (In Creditors Voluntary Administration): 6012234/2024

EMPLOYMENT TRIBUNALS

Case No 6012234/2024

Between

Mr Styvie MpembaClaimant

Hinton Skips UK Limited (In Creditors Voluntary Administration)Respondent

Before

Employment Judge E Fowell

Date 10 November 2025

JUDGMENT

[1]The claimant has brought a complaint under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 regarding a failure by the first respondent to comply with the requirements of section 188 of the 1992 Act.

[2]He was summarily dismissed on grounds of redundancy on 29 June 2024 without any consultation.

[3]The judgment of the Tribunal is that his complaint succeeds and that he is entitled to a protective award.

[4]In the absence of any consultation, the Tribunal orders the first respondent by way of a protective award to pay the claimant remuneration for the period of 90 days beginning on 30 June 2024.

[5]The award is also increased by 25% to reflect the first respondent’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

[6]The Employment Protection (Recoupment of Benefits) Regulations 1996 apply.

REASONS

[1]By way of background, the claimant worked for the first respondent (the company) until 29 June 2024 when he and a group of others were all summarily dismissed and the company went into administration. Page 1 of 3

[2]The only claim presented to the Tribunal was for a protective award for failure to comply with the group consultation requirements of section 188 of the 1992 Act.

[3](Mr Mpemba had less than two years service so was not able to bring a claim of unfair dismissal. It seems that in error he was sent a notice warning him that his claim of unfair dismissal would be struck out because of lack of service, but in fact no such claim has been made.)

[4]No response was entered to the claim. However, by letter dated 14 October 2024 one of the liquidators wrote to the Tribunal to say that they were unable to submit a response but that “Any award will form a claim in the Liquidation.” This amounts to consent for the action to continue.

[5]It was initially thought that a hearing was needed to clarify aspects of the claim. That hearing was listed for 13 February 2025. However, it was adjourned at Mr Mpemba’s request on grounds of his ill health. No new hearing has been listed since.

[6]Subsequently, by letter dated 20 June 2025, further information was provided by the liquidators. They have confirmed that Mr Mpemba was one of 29 employees based at the company’s premises in Herne Hill and that all of them were made redundant simultaneously on 21 June 2024.

[7]Further, the liquidators had no knowledge of any recognised trade union or of any representatives being elected or appointed in relation to the redundancy. In fact it states: “I do not believe the directors consulted the employees, any trade union or representative prior to redundancies being made.”

[8]Having this new information is a material change of circumstances and it is no longer necessary to have a hearing.

[9]The starting point is that no response has been made to the claim and so Mr Mpemba is entitled to a judgment in his favour. In a claim for a protective award it is not necessary for the judgment to define the sum owed, it is only necessary to define the length of the protected period for which payment is due.

[10]Section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) imposes on employers the requirement to consult “appropriate representatives” of their workforce about proposed larger-scale redundancies. It provides that: Page 2 of 3 “Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or may be affected by measures taken in connection with those dismissals.”

[11]That was the situation here and so a protective award is due.

[12]The protective award is defined in section 189(3). The protected period begins with the date on which the first of the relevant dismissals takes effect, or the date of the award, if earlier. It is of such length as the Tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default, up to 90 days.

[13]The Court of Appeal provided guidance in the well-known case of Susie Radin v GMB

[2004] IRLR 400

. Firstly, the purpose of the award is punitive, not compensatory. The Tribunal has a wide discretion, but the focus is on the employer’s default. The default may vary from complete failure to the merely technical. The starting point is the 90-day maximum, which should be reduced only if there are mitigating circumstances.

[14]Given that there was no consultation here, and no mitigation has been advanced, Mr Mpemba is entitled to the 90-day maximum. That protected period began on 30 June 2024.

[15]An uplift may be applied to the awards to a failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures. That power applies to claims brought under any of the jurisdictions listed in Schedule A2 to the 1992 Act, and that Schedule does include section 189 of the 1992 Act (failure to follow consultation requirements).

[16]Given the lack of any consultation, and in keeping with the maximum 90-day protective awards already made, the only appropriate figure to apply by way of uplift is the maximum of 25%. That is therefore applied in this case.