THE INDUSTRIAL TRIBUNALS
CASE REF: 05223/09
CLAIMANT: Unite the Union
RESPONDENT: McNeill - McManus Glass Ltd (In Administration)
The tribunal finds that;-
1. The respondent has failed to comply with its statutory duty of consultation under Article 216 of the Employment Rights (Northern Ireland) Order 1996, and
2. the claimant is entitled to a declaration to that effect, and
3. the redundant employees that the claimant represents are entitled to a protective award for a period of 90 days, and
4. the respondent is ordered to pay remuneration for the protected period.
Constitution of Tribunal:
Chairman (Sitting Alone): Mr B Greene
The claimant was represented by Mr Neil Gillam, Solicitor, of Donnelly & Kinder, Solicitors.
The respondent was not represented nor in attendance.
SOURCES OF EVIDENCE
1. The tribunal heard evidence from Maurice Cunningham Regional Industrial Organiser for the claimant and Samuel David Coulter, Shop Steward in the claimant union at the respondent company. The tribunal also had regard to the originating claim and a report from the administrators to all creditors and members dated 9 March 2009 submitted by the claimant.
THE CLAIM AND DEFENCE
2. The claimant claims a declaration and a protective award against the respondent for its failure to consult with the claimant about redundancies of 20 or more employees.
The respondent did not enter a response. By letter of 24 April 2009 the administrators gave their consent to these proceedings continuing.
3. When this matter was previously listed on 18 September 2009 the respondent was not in attendance nor represented. On ascertaining if it were aware of the hearing it indicated that it was and submitted a letter of 18 September 2009 setting out a number of matters in connection with the history of the administration of the company.
The respondent was informed that in the absence of a response the matters set out in its letter could not be put before the tribunal. The claim was then adjourned until 28 September 2009 to give the respondent an opportunity to issue a response if it so wished or to make such other application as may be appropriate. As of the hearing on 28 September 2009 no response had been submitted on behalf of the respondent nor any other application made. Consequently the matters referred to in the respondent’s letter of 18 September 2009 cannot be put before the tribunal.
4. The issues before the tribunal were;-
(i) Whether the respondent has discharged its statutory duty of consultation under Article 216 of The Employment Rights (Northern Ireland) Order 1996.
(ii) If the tribunal finds well founded the complaint that the respondent has not complied with its statutory duty to consult under Article 216 of The Employment Rights (Northern Ireland) Order 1996, whether it should make a protective award in addition to a declaration under Article 217(2) of The Employment (Northern Ireland) Order 1996.
FINDINGS OF FACT
5. (i) The claimant was a recognised trade union within the respondent.
(ii) On 12 January 2009 Brian Murphy and Michael Jennings of BDO Stoy Hayward, Management Consultants, were appointed joint administrators of the respondent company.
(iii) On 13 January 2009 Mr Coulter, the Shop Steward, was called to a meeting with the administrators. Mr Murphy, one of the administrators, explained that they were taking over the company but the company was continuing to work as normal. There was not any indication at that meeting that there would be any redundancies.
(iv) On 20 January 2009 in late afternoon Mr Coulter was advised that his team of workers was not to turn up for work the next day, 21 January 2009.
(v) On 22 January 2009 Mr Coulter was advised to attend a meeting at the respondent company premises at 1.30pm on 23 January 2009.
(vi) On 23 January 2009 at 1.30pm all the workforce had turned up. The workers were divided into their respective work groupings and spoken to as a group and then individually by the administrator. Most were advised that their employment had ceased as of that moment.
(vii) In fact some 33 employees were made redundant on 23 January 2009, a further two were made redundant on 26 January 2009 and a further 11 were made redundant on 11 February 2009. The remaining 33 employees had their employment transferred to the purchaser of the supply division.
(viii) It was on 23 January 2009 that the employees were first made aware that they were being made redundant. Prior to that date there had not been any consultation with the employees or their Shop Steward or with their Regional Organiser, Mr Cunningham.
6. (i) An employer proposing to dismiss as redundant 20 or more employees, within a period of 90 days, must consult, at least 30 days before the first dismissal takes effect, with the representatives of a recognised trade union (Article 216 The Employment Rights (Northern Ireland) Order 1996).
(ii) Where there are special circumstances, that make it not reasonably practicable for the employer to comply with the requirements of consultation, the employer shall take all steps towards compliance as are reasonably practicable in the circumstances (Article 216(9) The Employment Rights (Northern Ireland) Order 1996).
(iii) Where special circumstances apply, which render it not reasonably practicable for an employer to comply with the consultation requirements of Article 216, the onus is on the employer to show that there were such circumstances and that he complied as far as was reasonably practicable with the consultation requirements (Article 217(6) The Employment Rights (Northern Ireland) Order 1996).
(iv) When an employer has failed to comply with the requirement of Article 216 and the tribunal finds such a complaint well founded the tribunal shall make a declaration to that effect and may in addition make a protective award (Article 217(2) The Employment Rights (Northern Ireland) Order 1996).
(v) Where a tribunal decides to make a protective award, it shall be what the tribunal considers to be just and equitable in all the circumstances, having regard to the seriousness of the employer’s default in not complying with Article 216, but the period of the protective award shall not exceed 90 days (Article 217(3) and (4) The Employment Rights (Northern Ireland) Order 1996).
(vi) The English Court of Appeal in GMB v Susie Radin Ltd  IRLR at 400 per Peter Gibson LJ at paragraph 45 stated that;-
“… 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 employment tribunal considers appropriate.”
This view has been endorsed by the decision in the case of Haine & Another v Day  EWCA Civ 626 were the Court of Appeal held that where there is a complete breach of the obligation to consult, “… the tribunal realistically did not have discretion to refuse an award. If it had done so, it would have erred in law.”
APPLICATION OF THE LAW AND FINDINGS OF FACTS TO THE ISSUES
7. (i) The claimant is a recognised trade union.
(ii) The respondent decided on 23 January 2009 to make 33 employees redundant. It made two further employees redundant on 26 January 2009 and 11 further redundancies on 11 February 2009.
(iii) The respondent was obliged to begin consultation with the claimant at least 30 days before the first dismissals on 23 January 2009.
(iv) The respondent did not comply with its statutory obligations to engage in consultation under Article 216(2), (4) and (6) of The Employment Rights (Northern Ireland) Order 1996.
(v) As the respondent has not taken part in these proceedings nor entered a response there is no claim or attempt to claim that special circumstances under Article 216(9) of the 1996 Order apply.
(vi) The tribunal finds well founded the claimant’s complaint that the respondent failed to comply with its statutory requirements under Article 216 of The Employment Rights (Northern Ireland) Order 1996 and makes a declaration to that effect.
(vii) The tribunal finds that the claimant is entitled to a protective award which applies to the employees it represented. In so concluding the tribunal took into account the following matters;-
(a) There was no evidence before the tribunal to support the contention that special circumstances applied in relation to these redundancies.
(b) The respondent did not give notice of the redundancies until 23 January 2009, the day on which the redundancies commenced.
(viii) A protective award is punitive in nature and designed to impose a sanction on an employer for his failure to observe his statutory duty to consult with his employees (see Harvey on Industrial Relations and Employment Law Volume E [2633.02]).
(ix) The protective award is a collective award that is only for the benefit of those employees in respect of whom the respondent has failed to consult (Article 217(3) of the 1996 Order).
(x) The protected period begins on 23 January 2009 (Article 217(4) of the 1996 Order).
(xi) The length of the protected period is what the tribunal considers just and equitable (Article 217(4) of the 1996 Order).
(xii) In the absence of any consultation and any mitigating circumstances, the tribunal, assesses the protective award at 90 days.
(xiii) The respondent is ordered to pay remuneration for the protected period.
Date and place of hearing: 28 September 2009, Belfast.
Date decision recorded in register and issued to parties: