(1) MRS C SMITH (2) MS A MOORE v CHERRY LEWIS LTD (IN RECEIVERSHIP) [2004] UKEAT 0455_04_0511

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0455_04_0511

Case No Appeal No. UKEAT/0455/04/DM & UKEAT/0456/04

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

(1) MRS C SMITH (2) MS A MOOREAPPELLANTS

CHERRY LEWIS LTD (IN RECEIVERSHIP)RESPONDENT

Before

Mrs Justice Cox

Date 5 November 2004

[1]APPEARANCES For the Appellants MR IVAN WOOLFENDEN (of Counsel) Instructed by: Messrs EAD Solicitors Employment Law Unit Third Floor Minster House 17-19 Paradise Street Liverpool L1 3EU For the Respondent Respondent Neither Present Nor Represented SUMMARY Redundancy Failure to consult regarding redundancies. Protective Award and insolvent employer. Nature and purpose of "sanction" of protective award. Effect of guidance of Susie Radin Ltd v GMB and Others

[2004] ICR 893

when employer insolvent. Appeal against Chairman's decision not to make protective award allowed. THE HONOURABLE MRS JUSTICE COX This is an appeal by two Applicant employees, Corrine Smith and Anne Moore (the Appellants) from a Decision of the Leicester Employment Tribunal, the Chairman sitting alone, promulgated on 31 March 2004. In circumstances where the Chairman found that the Respondents had failed to provide the required information and to consult about proposed redundancies in breach of their statutory duties, he decided to make no protective award. The Appellants contend that in so deciding he erred in law in the approach he adopted to the exercise of his discretion. The appeal therefore raises the interesting and important issue of the relevant factors to be considered in the making of a protective award in cases where the Respondent employer is insolvent.

[2]The Respondents, Cherry Lewis Ltd, are in receivership. They have played no part in this litigation, entering no appearance before the Tribunal and no Respondents' answer in this appeal. In correspondence the Joint Administrative Receivers have notified this Appeal Tribunal that although they "oppose the appeal in principle" the time and costs involved in dealing with the matter would be of no benefit to creditors. They did not appear at or take any part in this appeal. I therefore heard submissions in this appeal solely from Mr Woolfenden, counsel for the Appellants, and I am grateful to him for his assistance.

[3]The relevant facts were not in dispute and can be shortly stated. The Chairman accepted the Appellants' evidence in its entirety. Both Appellants were employed as cutters by the Respondents at their factory in Hinkley; in the case of Ms Moore, she had been employed there for some 22 years. A Receiver was appointed and, on 11 December 2003, about half of the employees at the factory were dismissed as redundant. The remaining employees, including the Appellant Mrs Smith, were dismissed the following week and the business ceased to operate. The Chairman found that no union was recognized for collective bargaining purposes, nor were there any employee representatives elected. There was no consultation with anyone about the redundancies until these were announced on 11 December 2003.

[4]A letter from the Respondents which was issued to employees on 11 December 2003, and endorsed by the Receiver, said as follows:

"I write to advise you that following recent discussions with the company's bankers, the overdraft facility has been withdrawn. As a consequence, I regret to advise you that I have no alternative other than to implement an orderly wind down of the Business and as a consequence, the Company is no longer in a position to honour your contract of employment, which will be terminated with immediate effect. As a result, we regret that the company is unable to pay any outstanding monies that may be due to you in respect of arrears of pay, holiday pay, redundancy pay and pay in lieu of notice. I will issue you with the relevant forms that will enable you to claim your entitlements from the Department of Trade and Industry under the relevant provisions of the Employment Rights Act 1996. These claims will be met by the National Insurance Fund subject to certain statutory limits, although we would advise you that it is likely to be some time before payment will be effected. We will also provide you with an explanatory booklet to this effect."

[5]Directing himself, correctly, as to the provisions of Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 the Chairman held that that section imposed a duty on employers to consult about the dismissal persons who are appropriate representatives, or who may be affected by measures taken in connection with those dismissals, if it is proposed to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less. He found that the Respondents dismissed at least 45 employees, commencing on 11 December 2003, by the end of December. Pursuant to Section 189 of the Act , where a respondent has failed to consult in accordance with Section 188, a complaint may be presented to the Employment Tribunal by any of the affected employees or by any of the employees who have been dismissed as redundant if there are no employee representatives nor a representative trade union.

[6]At paragraph 7 of his Extended Reasons, the Chairman held as follows: I am satisfied therefore the respondent has failed totally to comply with its duties under section 188 of the Act and that these applicants are entitled to present the complaint" He referred then to the provisions of Section 189 (2) of the Act , which provides that if the Tribunal finds a complaint well founded it shall make a declaration to that effect and may also make a protective award. On this issue the Chairman set out his conclusions in paragraphs 9 to 12 of the Extended Reasons as follows:

"9. It has been the practice of this Tribunal to make a protective award as a matter of compensation to the employees, whenever there was a failure to comply with section 188, unless some argument to the contrary was put forward. As in almost every case the respondent is insolvent, the respondent is not normally represented and no contrary argument is put forward. Accordingly, having made a protective award the Secretary of State is liable for the compensation due under it. 10. However, I raised with Mr Lumsdon the recent Court of Appeal decision in Susie Radin Ltd v GMB and others [2004] EWCA Civ180 . In that case the Court of Appeal reversed the earlier Employment Appeal Tribunal authority that compensation was part of the reason for making a protective award. Lord Justice Peter Gibson, in that case, said: "

I suggest that ETs, in deciding in the exercise of their discretion whether to make a protective award and for what period, should have the following matters in mind: 1. The purpose of the award is to provide a sanction for breach by the employer for the obligations in section 188: it is not to compensate the employees for loss which they have suffered in consequence of the breach. 2. The ET has a wide discretion to do what is just and equitable in all the circumstances, but the focus should be on the seriousness of the employer's default. 3. The default may vary in seriousness from the technical to a complete failure to provide any of the required information and to consult. 4. The deliberateness of the failure may be relevant, as may the availability to the employer of legal advice about its obligations under section 188. 5. How the ET assesses the length of the protected period is a matter for the ET, an appropriate approach in the case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent to which the ET considers appropriate." 11. In this case there has been a complete failure to provide any of the required information and to consult. The respondent has not put forward any mitigating circumstances. However, as the Court of Appeal says that the purpose of the award is to provide a sanction against the employer and not to compensate the employees, I consider that it is not just and equitable to make a protective award. The respondent is in receivership. It is quite rare for receiverships in .this area and for this type of company to result in a payment to creditors in full. Indeed, it is unusual for ordinary creditors to receive any sort of dividend. The information available about this respondent would indicate that it was unable to pay its debts, even to employees who rank above trade creditors. Accordingly, the making of a protective award, whilst it would compensate employees, would be completely ineffective as a sanction against the employer. Even if the receivership were to make a payment to creditors, unless that were to be 100p in the pound with a surplus left for the company, the respondent would not be affected in any way by the sanction. The only person affected by the imposition of a sanction for the failure to consult would, in these circumstances, be the Secretary of State for Trade and Industry and the Redundancy Payments Fund. 12. Accordingly, in view of the interpretation of the law by the Court of Appeal, which reverses the authority under which Employment Tribunals have previously operated, in the case of an insolvent company such as this one, it would not be just and equitable to impose a sanction. I, therefore, decline to make a protective award."

[7]Mr Woolfenden criticizes the Chairman's decision on essentially two bases. The first point he takes is a factual and evidential one, namely that the Chairman's findings in paragraph 11 fall short of a finding of fact that there would be no surplus in this particular case. The only evidence before him on the point was that contained in the letter of 11 December 2003, referred to above, and the Chairman therefore proceeded on the basis of an impermissible assumption or mere conjecture as to the position. He submits that, on the basis of the terms of this letter, it was equally possible to speculate that Receivers were appointed at the behest of the lending bank to protect an unsecured overdraft and that by failing to make a protective award, which would rank as a preferential debt, pursuant to the operation of Section 386 and Schedule 6 of the Insolvency Act 1986 , the effect of the decision has merely been to increase the fund available to meet ordinary debts.

[8]I agree that the Chairman made no clear finding of primary fact that there would be no surplus in this case. However, given the failure by the Respondents to participate in the litigation, the Chairman was presented with inadequate information on which to arrive at a firm conclusion as to surplus, and he was no doubt doing the best he could with the material which was available to him. I would not allow this appeal on the basis only that the Chairman erred in drawing the inference he did from the letter of 11 December 2003, which seems to me to permit such an inference to be drawn in the circumstances, with the result that the Chairman's conclusion was not outside the range of reasonable conclusions to be arrived at on the basis of the information in that document.

[9]Far more significant in this appeal is Mr Woolfenden's second line of attack; that in any event the Chairman erred in his application of the guidance give in the recent case of Susie Radin Ltd v GMB and others , decided in the Court of Appeal, in particular in his interpretation of the term "sanction", and in regarding the information provided in the letter of 11 December as a relevant factor to take into account in deciding whether or not to make a protective award. Mr Woolfenden submits that the effect of the Chairman's Decision is to remove the only sanction which is provided for in cases of insolvency of the employer, and that this contravenes the requirement for the provision of a sanction imposed by reference to the relevant EC Directives.

[10]The appeal in the Radin case now reported at

[2004] ICR 893

was in fact the first occasion when the principles, upon which a protective award falls to be made, were considered by the Court of Appeal; and the Court provided helpful guidance as to how tribunals should approach the exercise of their discretion in determining whether to make a protective award and if so for what period. At paragraph 12 of his Judgment, Peter Gibson LJ, with whom the other members of the Court agreed, stated:

"The provisions with which we are concerned are in Chapter II of Part IV of the Trade Union and Labour Relations (Consolidation) Act 1992, that chapter relating to the procedure for handling redundancies. The relevant provisions were originally contained in ss. 99 to 107 of the Employment Protection Act 1975 ("the 1975 Act"). They were enacted to give effect to Council Directive 75/129/EEC ("the 1975 Directive"). By the 1975 Directive it was recited that it was important that greater protection should be afforded to workers in the event of collective redundancies (defined to mean dismissals effected by an employer for one or more reasons not related to the individual workers concerned, above a specified minimum number). The 1975 Directive provided for a consultation procedure which had to be followed by the employer. It has now been replaced by Council Directive 98/59/EC, Article 6 of which requires member states to ensure that "judicial and/or administrative procedures for the enforcement of obligations under the Directive are available to the workers' representatives and/or workers"."

At paragraph 13 he continued:

"There is no mention in either Directive of any protective award. Nothing is expressly stated as to any sanction for any failure to comply with the consultative procedure. However, it is not in dispute that Article 10 of the EC Treaty requires member states to take all measures necessary to ensure that infringements of Community law are "penalized under conditions …. which, in any event, make the penalty effective, proportionate and dissuasive." ( Commission of the European Communities v Hellenic Republic [1989] ECR 2965 at p. 2985 para. 24.)"

Thus the emphasis is on the punitive and dissuasive nature of the penalty to be imposed.

[11]Peter Gibson LJ then referred to the relevant domestic legislative provisions giving effect to the European legislation and dealing with the duty of an employer to consult. For convenience I set those provisions out here:

"14. By s. 188 (1) and (1A) of the 1992 Act (as amended): "

Duty of employer to consult representatives (1) 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. (1A) The consultation shall begin in good time and in any event – (a) where the employer is proposing to dismiss 100 or more employees as mentioned in subsection (1), at least 90 days, and (b) otherwise, at least 30 days, before the first of the dismissals takes effect." 15. S. 188 (1B) provides who are the appropriate representatives of any affected employees. If the employees are of a description in respect of which an independent trade union is recognised by their employer, those representatives are representatives of the trade union. In any other case, the appropriate representatives are employee representatives as specified in para. (b) of s. 188 (1B). 16. By s. 188 (2):

"The consultation shall include consultation about ways of – (a) avoiding the dismissals, (b) reducing the numbers of employees to be dismissed, and (c) mitigating the consequences of the dismissals, and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives."

This was a new provision introduced in 1995 but giving effect to provisions in Article 2 of the 1975 Directive. 17. S. 188 (4) provides:

"For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives – (a) the reasons for his proposals, (b) the numbers and descriptions of employees whom it is proposed to dismiss as redundant, (c) the total number of employees of any such description employed by the employer at the establishment in question, (d) the proposed method of selecting the employees who may be dismissed, (e) the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect, and (f) the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any enactment) to employees who may be dismissed." 18. S. 189 is in this form, so far as material: "

Complaint … and protective award (1) Where an employer has failed to comply with a requirement of section 188 …., a complaint may be presented to an employment tribunal on that ground – …. (c) in the case of failure relating to representatives of a trade union, by the trade union, and (d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant. …. (2) If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award. (3) A protective award is an award in respect of one or more descriptions of employees – (a) who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and (b) in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188, ordering the employer to pay remuneration for the protected period. (4) The protected period – (a) begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and (b) 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 in complying with any requirement of section 188; but shall not exceed 90 days ….""

[12]At paragraphs 19 – 21 the Judgment continued as follows:

"19. By s. 189 (5) the tribunal are not to consider a complaint unless presented to them before the date on which the last of the dismissals to which the complaint relates takes effect or in the 3-month period beginning with that date or such further period as the tribunal consider reasonable where the tribunal are satisfied that presentation within the 3-month period was not reasonably practicable. 20. By s. 190 the employer is obliged to pay remuneration for the protected period to every employee of a description to which the protective award relates. Ss. 190 and 191 contain provisions limiting that right to be paid remuneration. For example, under s. 190 (4), the employee is not entitled to remuneration under a protective award in respect of a period during which he is employed by the employer unless entitled to be paid by the employer in respect of that period by virtue of his employment contract or his rights in a period of notice. Other provisions terminate the right to payment if the employee dies during the protected period (s. 190 (6)) or is fairly dismissed or unreasonably terminates the contract of employment (s. 191 (1)). 21. S. 190 (3), until repealed by Section 34 (3) of the Trade Union and Employment Rights Act in 1993, provided for a set off of certain payments made by an employer to an employee in respect of a period within the protected period against the employer's liability to pay the protective award. However, in Commission v U.K. [1994] ICR 664 the European Court of Justice at paras. 42 – 44 pp. 725, 6 held that s. 190 (3) largely deprived what it called "that sanction" (viz. the protective award) of its practical effect and "its deterrent value", and pointed out that an employer will not be "penalised" by "the sanction" except and only to the extent that the protective award exceeds the sums which he is otherwise required to pay to the employee. That court therefore held that the United Kingdom, "by failing to provide for effective sanctions in the event of failure to consult" as required by the 1975 Directive, had failed to fulfil its obligations under that Directive and Article 5 of the EEC Treaty. "

[13]At paragraphs 24 – 28 Peter Gibson LJ made the following observations: 24. The following features of the statutory provisions can be identified as relevant:(1) An absolute obligation is imposed on the employer to consult the appropriate representatives of employees who may be affected by the proposed dismissals, such consultation to be in good time and to be conducted with representatives who are fully informed by reason of the required disclosure specified in s. 188 (4). Moreover, because the disclosure must be in writing, there can be no dispute as to the extent of the disclosure in fact made.

(2) The topics for the consultation must include the matters specified in s. 188 (2) and the employer must undertake the consultation not as an end in itself but with a view actually to reach agreement.

(3) The consequences of a finding by the tribunal that the complaint is well-founded are the mandatory declaration to that effect and, if the tribunal choose to exercise their discretion, the making of the protective award. No other sanction is provided.

(4) The references to protection in the defined terms, "a protective award" and "the protected period", are not explained by any other reference to protection in the domestic statutory provisions nor in the Directives, although the 1975 Directive refers to the importance of greater protection for workers affected by collective redundancies.

(5) The protective award is expressed to be in respect of one or more descriptions of employees affected, rather than in respect of individuals; it is a collective award.

(6) That the particular circumstances of individuals are not the focus of attention in the statutory provisions is also brought out by the fact that the protected period begins with the date on which the first of the dismissals to which the complaint relates takes effect (unless the date of the protective award is earlier) and that the limitation period for bringing a complaint under s. 189 is defined by reference to the date on which the last of the dismissals to which the complaint relates takes effect, regardless of the dates on which the dismissals of others to whom the complaint refers take effect.

(7) A protective award imposes an obligation on the employer to pay remuneration, quantified in s. 190, during the protected period and confers an entitlement on every employee of a description to which the award relates to be paid remuneration during that period, subject to the specified limits and exceptions in ss. 190 and 191; the tribunal in making that award and in fixing the length of the protected period are not directly concerned with the remuneration and its quantum in the case of individual employees.

(8) There is no reference whatever to compensation or loss in the provisions relating to the protective award, in contrast to the other statutory provisions in employment legislation using the formula "just and equitable in all the circumstances having regard to" (see, for example, ss. 60 (4), 80 (4) and 123 (1) of the Employment Rights Act 1996 ("the 1996 Act")).

(9) The only guidance given as to the length of the protected period is that, subject to a maximum of 90 days, it is to be what the tribunal determine to be "just and equitable in all the circumstances having regard to the employer's default in complying with any requirement of section 188." 25. In the light of those features, despite Mr. Jones's submissions to the contrary, it seems to me tolerably plain that the purpose of the protective award is to ensure that consultation in accordance with the requirements of s. 188 takes place by providing a sanction against failure to comply with the obligations imposed on the employer. The potential severity of that sanction can be seen from the facts of the present case where the award, we are told, will cost the Company some £250,000 by way of remuneration for the employees made redundant. 26. Whilst that sanction results in money being paid to the employees affected in the form of remuneration paid to them, there is nothing in the statutory provisions to link the length of the protected period to any loss in fact suffered by all or any of the employees. Their dismissals may not take effect at the same date. Their individual circumstances, for example whether another job immediately became available, may well differ. The required focus is not on compensating the employees but on the default of the employer and its seriousness. It is that seriousness which governs what is just and equitable in all the circumstances. I find it impossible to see how compensation for loss could be implied into the statutory provisions, given that the award, if one is to be made, is across the board for all employees falling within a particular description, as distinct from an individual award to each employee. 27. In Association of Patternmakers & Allied Craftsmen v Kirvin Ltd.

[1978] IRLR 318

Lord McDonald, giving the judgment of a Scottish EAT, adverted to the punitive nature of the protective award when he said at p. 319 para. 1:

"A Tribunal, however, is specifically enjoined to determine the [protected] period and so the amount of the award by paying regard to the seriousness of the employer's default. This introduces a punitive element into the jurisdiction of an Industrial Tribunal and in contrast with eg, the calculation of a compensatory award which is based upon what is just and equitable having regard to the loss sustained." 28. I have already noted the decision of the European Court of Justice in Commission v U.K. that the United Kingdom had, because of s. 190 (3), failed to provide for effective sanctions for a failure to consult as required by the 1975 Directive and so breached the obligations under that Directive and Article 5 of the Treaty. It is therefore clear that the tribunal's ability to make a protective award, albeit discretionary, must be taken as intended to fulfil an obligation under European Community law to provide an effective sanction for breach of the employer's obligation to consult."

[14]It is therefore clear from the decision in the Radin case that, in referring to an "effective sanction", the Court was recognizing that the sanction is meant to be punitive and to have a deterrent effect. Thus its effectiveness ought to be judged at the time when the failure to provide the required information and to consult about proposed redundancies occurs, and not at a later stage when the redundancies are actually implemented or when a complaint is presented to the Tribunal. The sanction of a protective award in these cases aims to enforce the statutory requirement of consultation and to dissuade employers from failing to comply with their statutory duties to provide information and to consult. At paragraph 25 of the judgment, the Court of Appeal were emphasizing, in accordance with this approach, that the requirement upon member states to provide a sanction is satisfied by the provision in legislation for the making of a protective award.

[15]In the present case, at paragraph 11 of his Extended Reasons, the Chairman declined to make a protective award solely on the ground that he considered it to be "completely ineffective as a sanction against the employer". In my judgment, when deciding whether to exercise his discretion to make a protective award, and if so for what period, the Chairman failed to focus, as he should have done, on the seriousness of the employers' default in failing to comply with their statutory duty of consultation. He took into account what, in my view, were irrelevant factors, namely the employers' insolvency, their inability to pay and the likelihood that the Government would have to step into the employers' shoes. The Chairman was, in this way, considering sanction in a retributive rather than a punitive or a dissuasive sense and, approaching it in that way, he concluded that the imposition of a financial debt upon a company which continued in existence, even if insolvent, did not amount to a sanction. This approach, in my view, is erroneous. It fails to apply the guidance of the Court of Appeal in the Radin case and it contravenes the requirement for the provision of a sanction imposed by reference to the relevant EC Directives.

[16]It is undoubtedly the case, as the Chairman himself recognized, that corporate insolvency will arise in a high percentage of cases involving collective redundancies where the legislation aims to protect workers in this situation by the duty placed on employers to provide relevant information and to consult as to proposed redundancies. The threat of the sanction provided by the protective award would remove that protection from a substantial number of workers if the Chairman's reasoning were correct and a decision whether or not to make a protective award required the assessment of the employers' ability to pay and the effectiveness of such a sanction upon an insolvent employer at the time the matter is being considered in the Tribunal. I accept Mr Woolfenden's submission that it is not for the Tribunal to assess the adequacy or effectiveness of a sanction determined to be appropriate by the relevant legislation, the aim of which is to punish and deter. It seems to me that the impact of this legislation would be considerably undermined if the approach adopted by the Chairman in this present case were correct.

[17]Later on in the Radin decision, the Court provided useful guidance to tribunals as to the correct approach to be taken when considering whether to exercise their discretion to make a protective award. In this context it is worth referring to the remarks of Peter Gibson LJ at paragraph 42 of his judgment where, after reviewing the earlier authorities in the Employment Appeal Tribunal dealing with this topic, he considered the well known EAT Decision in the case of Spillers French (Holdings) Ltd. v USDAW

[1980] ICR 31

, and said as follows:

"To the extent that the EAT were saying in Spillers French that, despite a complete failure to consult, the ET could properly conclude that no, or only a nominal, award was appropriate merely because of the employer's efforts to find alternative employment for the employees, I would respectfully disagree. Given the absolute obligation on the employer to consult, and to consult meaningfully, I cannot accept that a wholesale disregard of the obligations imposed on the employer by s. 188 could properly lead to such a result. I do not believe that Slynn J. was suggesting that the consequences to individual employees were relevant to the seriousness of the employer's default. Instead he seems to me to have been saying that what the employer did by way of finding the employees other employment would be a relevant consideration for the tribunal. Even on that point I respectfully doubt the significance attached to it by Slynn J., because the employer's obligation under s. 188 (2)(c) was to consult about ways of mitigating the consequences of the dismissals; unilateral action by the employer without consultation seems to me not only to fail to comply with the obligation but to be likely to be less effective mitigation."

[18]At paragraph 45 Peter Gibson LJ identified the matters which tribunals should take into account when considering whether to make a protective award, and the Chairman in this case referred to this guidance at paragraph 10 of his Reasons: 45. I suggest that employment tribunals, in deciding in the exercise of their discretion whether to make a protective award and for what period, should have the following matters in mind:(1) The purpose of the award is to provide a sanction for breach by the employer of the obligations in s. 188: it is not to compensate the employees for loss which they have suffered in consequence of the breach.

(2) The tribunal have a wide discretion to do what is just and equitable in all the circumstances, but the focus should be on the seriousness of the employer's default.

(3) The default may vary in seriousness from the technical to a complete failure to provide any of the required information and to consult.

(4) The deliberateness of the failure may be relevant, as may the availability to the employer of legal advice about his obligations under s. 188.

(5) How the tribunal assesses the length of the protected period is a matter for the tribunal, but a proper approach in a case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the tribunal consider appropriate.

[19]It is clear from that guidance that the focus throughout the Tribunal's deliberations should be on the employer's default. In the present case, the Chairman's findings as to default are beyond doubt. The employers in this case were found to have failed totally to comply with their duties to provide any of the required information and to consult and, further, at paragraph 11 the Chairman found on the evidence that there were in this case no mitigating circumstance. In these circumstances the Chairman erred in my judgment in deciding, for the reasons he gave, not to make a protective award.

[20]This appeal must therefore be allowed.

[21]Given the Chairman's clear findings of fact in this case as to default and as to the absence of any mitigating circumstances, there is, in my view, no necessity to remit this case for fresh determination and I am able to substitute my own decision on the facts that the Chairman found, namely that a protective award should be made in the case of both of these Appellants and in accordance with the 1992 Act . It is not entirely clear from the Decision that the Chairman expressly made a declaration, although it is clearly implicit in his findings and in the Decision taken as a whole that that was his intention. I shall therefore make an order in the appropriate terms, after hearing further from Mr Woolfenden. [DISCUSSION]

[22]Following further submissions as to the form that the order should take and having had regard to the provisions of Section 189 (3) of the 1992 Act , the Order that I make shall be in the following terms:(1) That the Order of the Employment Tribunal held at Leicester on 30 March 2004 should be upheld to the extent of the granting of a declaration to the effect that the Appellants' complaint that the Respondents failed to comply with a requirement of Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 was well founded.

(2) That in the case of each Appellant there should be a protective award paid in respect of the protected period as defined by Section 189 (4) of the Act and which shall in respect of each such Appellant be the period of 90 days.

(3) That in addition, and pursuant to the provisions of Section 189 (3) of the 1992 Act , there should be a protective award paid in respect of such hourly and/or weekly and/or monthly paid employees of the Respondents, who were dismissed on or after 11 December 2003, whereby subject to Sections 190 and 191, the Respondents are ordered to pay remuneration to each such employee for the protected period, which shall, in respect of each such employee, be the period of 90 days.

(4) That there should be liberty to apply in respect of the terms of this Order, any such application to be made within 14 days of the seal date of the Order.