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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McDonald v SMTEK Europe Ltd (in Liquidati... [2008] NIIT 106_07IT (01 July 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/106_07IT.html
Cite as: [2008] NIIT 106_7IT, [2008] NIIT 106_07IT
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- The facts of this case were agreed between the parties and were explained to the tribunal. The first named respondent had found itself in serious financial difficulties and as a result was now in liquidation. The first named respondent employed more than 100 employees, but failed to consult with either the Trade Unions, representing most of the employees of the first named respondent, or with the non-union employees, concerning the possibility and indeed likelihood of redundancy.
- The entire workforce was declared redundant on 14 June 2004. The employees who were represented by trade unions made application to an industrial tribunal and were awarded a protective award (as described below). However the non-union represented employees were not given any such award and consequently now bring this application to this tribunal.
- Article 216 of The Employment Rights (Northern Ireland) Order 1996 (hereinafter "The Order"), provides that where an employee is proposing to dismiss as redundant, 100 or more employees, the employer shall consult with the representatives of those employees affected by the proposed redundancy.
- Article 216 goes on to set out the procedures for electing representative to meet the employer to consult over proposed redundancies, where trade union representation is not appropriate as employees are not union members. The employer is authorised to invite the non–union employees to elect a representative to consult on their behalf. If the non-union employees fail to so elect a representative, then under Article 216 (11A), "……..he shall give to each affected employee the information set out in paragraph (6)." Paragraph (6) is the list of matters which the employer must give to the union or elected representatives regarding the reason for and details of the proposed redundancies and how the employer intends to carry them into effect.
- Under Article 217 of The Order, if an employer fails to consult as directed in Article 216 a complaint may be made to an industrial tribunal by, inter alia; "217(d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant"
- If the tribunal finds the complaint well founded it shall make a declaration to that effect and may make a protective award to the employee affected. The protective award is an order that the employer pays to the employee a sum of remuneration of such length as the tribunal considers to be just and equitable in all the circumstances. However under Article 217(4) of The Order, the payment awarded shall not exceed 90 days remuneration per employee so entitled.
- The tribunal is unanimous in its decision that these claimants are entitled to a protective award. No attempt was made by their employer, the first named respondent, to either discover a proper elected representative of the non-union employees, or to consult with the non union employees on an individual basis as laid down in The Order. The claimants and the second named respondent have agreed that the appropriate protective award is 90 days remuneration for each claimant and this tribunal so awards this payment to each claimant, against the first and second named respondents. It is appreciated by the tribunal that the award so made will be paid, in part, by the second named respondent, the first named respondent being insolvent.
CASE REFS: 106/07, 1274/07, 1605/07 1773/07, 1774/07
CLAIMANTS: Margaret McDonald
Nicola Sharpe
Colin Fearon
Lisa Janet Fenner (nee Malcolmson)
Sinead McVeigh
RESPONDENTS: 1. SMTEK Europe Limited (in Liquidation)
2. Department for Employment & Learning
The unanimous decision of the tribunal is that the claimants are entitled to protective awards under the provisions of Article 217 of The Employment Rights (Northern Ireland) Order 1996. These awards are to be paid by the second named respondent.
Constitution of Tribunal:
Chairman: Mr Cross
Panel Members: Mrs Elliott
Mr McAnoy
Appearances:
The claimants represented themselves.
The first named respondent did not appear and was not represented. The second named respondent was represented by Mr Curran of the Department for Employment and Learning.
Findings of Facts
The Law
Decision
Chairman:
Date and place of hearing: 6 June 2008, at Belfast
Date decision recorded in register and issued to parties: