Industrial Tribunals Northern Ireland Decisions

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Pringle & Ors v Balmoral Clinic [2009] NIIT 939_08IT (14 January 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/00939.html
Cite as: [2009] NIIT 939_8IT, [2009] NIIT 939_08IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 939 – 964/08

CLAIMANTS: 1. RICHARD KENNETH PRINGLE 939/08

2. ANNE PATRICIA ALEXANDER 940/08

3. NICOLA ELLEN McVEIGH 941/08

4. SHARLENE LOWRY 942/08

5. IAN ROBERT CRANGLE 943/08

6. SARAH ELIZABETH WASHINGTON 944/08

7. MARTINA PATRICIA SHIRRA 945/08

8. EDITHA WOOD 946/08

9. MAC FOO 947/08

10. CHRISTINE HEARD 948/08

11. MAURA ALLEN 950/08

12. SARAH WAKE 952/08

13. JILL SHERRY 953/08

14. MARGARET O’HARA 954/08

15. FIONA MORRIS 955/08

16. EMMA McALLISTER 956/08

17. MARY THERESA MALONE 957/08

18. PAULINE LUNDY 958/08

19. FIONNUALA ANN LENNON 959/08

20. VIVIENNE HUNTER 960/08

21. SHARON HANLEY 961/08

22. PAULINE CONNOLLY 962/08

23. JUNE CLARKE 963/08

24. WENDY BLACK 964/08

RESPONDENT: BALMORAL CLINIC (IN ADMINISTRATION)

DECISION

The unanimous decision of the tribunal is that each and every one of the above claims made under Article 217 of the Employment Rights (Northern Ireland) Order 1996 is well founded. The tribunal makes a protective award for the period of 90 days from 4 April 2008 in respect of each of the above named claimants.

Constitution of Tribunal:

Chairman: Mrs Watson

Panel Members: Ms McReynolds

Mr Burnside

Appearances:

The claimants numbered 1 to 10 above (inclusive) were represented by Mr Guerin of Campbell Fitzpatrick, Solicitors. The claimants numbered 11 to 24 above (inclusive) were represented by Mr O’Neill of Thompson’s McClure, Solicitors.

The respondent did not appear and was not represented.

THE ISSUES

1. The first issue for the consideration of the tribunal related to an application by Mr O’Neill to amend the originating applications of the following claimants;

1. No. 11. Maura Allen (CRN 950/08)

2. No. 13. Jill Sherry (CRN 953/08)

3. No. 19. Fionnuala Ann Lennon (CRN 959/08)

4. No. 21. Sharon Hanley (CRN 961/08)

5. No. 23. June Clarke (CRN 963/08)

6. No. 24. Wendy Black (CRN 964/08)

2. Due to an administrative oversight for which he apologised, Mr O’Neill advised the tribunal that the date of termination given by each of these claimants in their originating claim form was wrong. These claimants had mistakenly given the date relating to their last payment. The tribunal heard oral evidence on this point from Fionnuala Ann Lennon who referred the tribunal to a copy of a letter she and all other claimants received from the administrator which stated that the date of termination was 4 April 2008. The tribunal was satisfied that it was common cause between the parties that this was the correct date in respect of each and every termination and allowed the amendments as requested to reflect the correct date where applicable.

3. The tribunal next sought to determine whether the respondent had complied with the duties imposed on employers by the Employment Rights (Northern Ireland) Order 1996 when redundancies are proposed.

THE LAW

4. Employers are required by Article 126 to consult employee representatives, or where there is no recognised trade union representatives, the employer should appoint representatives, to receive information and be consulted about the proposed dismissals.

EVIDENCE

5. The tribunal heard evidence and were satisfied that the employers in this case had failed to inform their employees in any way about any of the problems that existed or any possible threat to the continuation of their employment. Any information received by each and every one of the claimants in these cases came from other colleagues.

FINDINGS OF FACT

6. On or about 21 December 2007, the respondent company ceased trading. Members of staff who were on duty that day made contact with the rest of the staff and informed them that they would continue to be paid but were not required to attend work.

7. One of the respondent’s Medical Directors, Brian Page, attended two meetings with staff, on 22 February 2008 and 21 March 2008. Both meetings were called by the staff through their Trade Unions representatives. The respondent did not formally recognise either Trade Union.

8. Despite an assurance by Mr Page at the March meeting that staff would be issued with protective notice, no such action was taken by the respondent.

9. By letter dated 4 April 2008 from John Hansen of KPMG, each and every claimant was notified that their employment was terminated with effect from the date of the letter and that Mr Hansen had been appointed Administrator.

CONCLUSIONS

10. The tribunal was satisfied by the oral and documentary evidence presented that the respondent did not comply in any respect with the duties imposed on it under Articles 216 to 226 of the 1996 Order (as amended) and makes a declaration that the claims of each and every one of the above named claimants is well founded.

11. Since the respondent did not comply with the statutory requirements and did not satisfy the tribunal that there was any reason for that failure, the tribunal was satisfied that a protective award should be made. In determining the appropriate award, the tribunal took into account the seriousness of the respondent’s default of its statutory duties. The Court of Appeal in England in Susie Radin Ltd v GMB & Ors [2004] IRLR 400 held that the focus of a protective award is on the default of the employer and its seriousness and that such awards are punitive in nature. In deciding whether to make a protective award and for what period, Gibson LJ advised tribunals (at paragraph 45) 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 tribunal considers appropriate.”

12. This view has been endorsed recently by the decision in the case of Haine & another v Day [2008] EWCA Civ 626 where 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.” In their view, the proper award is for the maximum period permitted by the statute.

13. Accordingly, the tribunal makes a protective award for the period of 90 days from 4 April 2008 in respect of each of the claimants in these cases.

14. The provisions of the Employment Protection (Recoupment of Jobseekers Allowance & Income Support ) Regulations (Northern Ireland) 1996 apply.

Chairman:

Date and place of hearing: 8 December 2008 at Belfast

Date decision recorded in register and issued to parties: