1) UNITE THE UNION 2) MRS D FITZPATRICK & 4 OTHERS 3) MS C PERRY v SAYERS CONFECTIONERS LTD - IN ADMINISTRATION [2009] UKEAT 0513_08_0902

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2009] UKEAT 0513_08_0902

Case No Appeal No. UKEAT/0513/08/LA UKEAT/0514/08

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

1) UNITE THE UNION 2) MRS D FITZPATRICK & 4 OTHERS 3) MS C PERRYAPPELLANTS

SAYERS CONFECTIONERS LTD - IN ADMINISTRATIONRESPONDENT

Before

Mr Justice Underhill

Date 9 February 2009

[1]APPEARANCES For the Appellants MR PETER EDWARDS (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors Suite 1B Joseph's Well Hanover Walk Leeds LS3 1AB For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY PRACTICE AND PROCEDURE Application/claim Tribunal wrong to refuse to accept complaint presented against company in administration – correct course to accept the complaint but stay it – Carr v British International Helicopter

[1994] ICR18

followed. THE HONOURABLE MR JUSTICE UNDERHILL The Respondent company went into administration on 9 June 2008. Over thirty employees, including the individual Appellants in this appeal, were dismissed for redundancy with immediate effect. They have claims against the Respondent for statutory redundancy payments and possibly for other unpaid contractual entitlements. The remaining Appellant, Unite the Union, was the recognised trade union in respect of the dismissed employees and has a claim for failure to consult pursuant to s. 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 .

[2]Any proceedings in relation to those claims would be caught by the provisions of para. 43 of Schedule 5 to the Insolvency Act 1986 (as amended), which provides that "in the case of a company in administration, no legal process (including legal proceedings…) may be instituted or continued against the company" without the consent of the administrator or the permission of the Court. The Appellants solicitors, Messrs Rowley Ashworth, accordingly wrote to the administrators seeking their consent to the commencement of proceedings in the employment tribunal raising the claims to which I have referred. The administrators indicated that such consent was likely to be forthcoming; but that had not occurred by early September, and since the statutory time limits were due to expire on 8 September 2008 both the individual Appellants and the union presented claims in the employment tribunal. That might be thought to be contrary to the prohibition in the 1986 Act to which I have referred; but in Carr v British International Helicopters Ltd

[1994] ICR 18

, a decision of this Tribunal presided over by Lord Coulsfield, it was held that the effect of the statute was not that proceedings brought against a company in administration without consent or the permission of the court were a nullity, but only that they were liable to be stayed. (At the time of the decision the relevant provisions were those of the unamended 1986 Act; but those are substantially identical to the provisions as they now stand.)

[3]Rowley Ashworth expected that their complaints would be stayed, in accordance with the decision in Carr , pending receipt of the consent from the administrators. However, by letters dated 8 and 12 September the Liverpool Employment Tribunal informed them that Employment Judge Reed had decided that the complaints could not be accepted by reason of the provisions of the 1986 Act. Rowley Ashworth wrote a clear and well-reasoned letter referring to Carr and asking that the Judge review his decision; but they received only a short reply saying that he maintained his original decision for the reasons already given.

[4]These are appeals against those decisions, i.e., strictly, the original decision in both cases not to accept the complaints and the subsequent refusal to review those decisions. The Appellants are represented by Mr Edwards of counsel. The administrators do not resist the appeal and are not represented. That is unsurprising. Shortly after the Employment Judge's refusal of the review they in fact confirmed that they consented to the proceedings being brought, and it seems most unlikely that they would wish in those circumstances to take any time point. However, the appeal is not academic because, since compliance with the statutory time limits goes to jurisdiction, it will be necessary, if the claims were not properly presented, for the Appellants to satisfy the Tribunal that it had not been reasonably practicable for them to have been presented in time: that might seem straightforward, but the possibility cannot be ruled out that the Tribunal would take the view that the claims could have been presented in time if the Appellants had made an urgent application to the Court.

[5]The fact that the appeal is unopposed does not of course mean that it should be allowed unless I am persuaded that the Employment Judge was wrong. However, with all respect to him, that is the case. I can see no reason why the decision in Carr does not apply equally in the present cases. I am not of course bound by that decision; but I should follow it unless persuaded that its reasoning is wrong, and in fact I find that reasoning convincing. I am told in a helpful written statement from Ms Batten of Rowley Ashworth, who has a lot of experience of proceedings in the employment tribunal against companies in administration, that the normal practice is to accept such claims but stay them pending a decision by the administrators whether to give consent: indeed, she says that this is to her knowledge the normal practice even in the Liverpool Tribunal. I have no reason to doubt that evidence, and I think it is a pity that Employment Judge Reed did not respond in more detail to Rowley Acworth's letter seeking a review. The only potential justification for a different approach being taken now from that endorsed in Carr might be if there had been a material change in the Employment Tribunal Rules in the meantime. The process for the acceptance of claims was indeed changed in the 2004 Rules, but I cannot see that any of the changes is material to the ratio in Carr .

[6]I will accordingly allow this appeal and direct that the Appellants claims be treated as having been accepted as from the date that Rowley Ashworth sought to present them.