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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Unite & Others v Nortel Networks UK Limited (In... [2010] NIIT 6445_09IT (11 June 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/6445_09IT.html
Cite as: [2010] NIIT 6445_09IT, [2010] NIIT 6445_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 6445/09 & Others
APPLICANT: Unite & Others
RESPONDENT: Nortel Networks UK Limited (In administration)
DECISION
The unanimous decision of the tribunal is as follows:
Unite’s application
(A) Unite has made application pursuant to Article 217 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), complaining that the respondent has failed to comply with the requirements of Article 216 of the 1996 Order relating to representatives of Unite. That complaint is well-founded.
(B) The tribunal has decided to make a protective award in respect of all of those employees of the respondent in respect of whom all of the following circumstances apply. (1) They were dismissed as redundant in or about the month of March 2009 (2) They were employed in Northern Ireland. (3) They fell within a description of employees in respect of which the claimant union was recognised by the respondent.
(C) It is ordered that the employer shall pay remuneration for the protected period.
(D) The protected period began on 30 March 2009 and lasted for 90 days.
Hamilton’s application
(A) Ms Andrea Hamilton, who was a Northern Ireland employee representative on Nortel’s “UK Employee Forum” (“the Forum”) has also made an Article 217 application arising out of the relevant redundancies. Ms Hamilton’s complaint is made in respect of the alleged failure on the part of the respondent to comply with its Article 216 duties in relation to “employee representatives”.
(B)
We are satisfied that this
application was made within the relevant statutory
time-limit.
(C) It is declared that Ms Hamilton’s complaint is well-founded.
(D) The tribunal has decided to make a protective award in respect of all of those employees of the respondent to whom all of the following circumstances apply. (1) The employees were dismissed by the respondent as redundant in or about the month of March 2009. (2) They were employed in Northern Ireland. (3) They did not fall within a description of employees in respect of which Unite was recognised by the respondent.
(E) It is ordered that the respondent shall pay remuneration for the protective period.
(F) The protected period began on 30 March 2009 and lasted for 90 days.
The claims by the other applicants
The claims by the other applicants must be dismissed, because they do not have the “standing” to make an article 217 application (See below). However, this outcome should make no difference to any of the relevant applicants, because all of them will either be within the scope of Unite’s protective award or within the scope of the Hamilton protective award.
Constitution of Tribunal:
Chairman: Mr P Buggy
Members: Ms F Graham
Mr M Grant
Appearances:
The applicants Unite, Ms Andrea Hamilton and Ms Catherine Blain were represented by Mr John O’Neill, Solicitor, of Thompsons McClure Solicitors.
The applicants Ken Snoddy, Patrick Brogan and Louise Firth were represented by Mr Andrew Stephens.
The applicant James McIlroy was self-represented.
The respondent was represented by Mr Adam Brett Solicitor, of McGrigors Solicitors.
REASONS
1. These are “lead” cases which were heard together. In each case, the applicant makes a complaint pursuant to Article 217 of the 1996 Order. (Article 217, which is entitled “Complaint and protective award”, provides that where an employer has failed to comply with the requirements of Article 216 of that Order, a complaint can be made in respective of that non-compliance).
2. The names of the applicants in all of these lead cases, and the reference numbers of these cases are as follows:
Unite (6445/09)
Andrea Hamilton (321/10)
Catherine Blain (6439/09)
Ken Snoddy (6604/09)
Patrick Brogan (5788/09)
Louise Firth (6605/09)
James McIlroy (6444/09)
3. The respondent company has gone into administration. The administrators have given their consent to the commencement or continuation of the proceedings in each of these Article 217 applications.
4. The Unite proceedings are brought by Unit e in its role as a recognised trade union. The Hamilton proceedings are brought by Ms Hamilton in her role as a representative of the Forum. (See above). Each of the other lead cases is brought by the relevant individual applicant on his or her own behalf.
5. In Northern Ireland, Unite (the trade union) was recognised by the respondent for collective bargaining purposes, but only in r espect of certain sections of its workforce.
6. For the purposes of the Hamilton proceedings, the respondent admits that the Forum consisted of “appropriate representatives” within the meaning of Article 216(3) of the 1996 Order. In light of that concession, Mr O’Neill, for the purposes of the Hamilton case only, accepts that the Forum representatives were indeed “appropriate representatives” within the meaning of Article 216.
7. On the basis of the facts which have been drawn to our attention in this case, we are satisfied that the Forum did indeed consist of “appropriate representatives” within the meaning of Article 216. Because of that conclusion, it is clear that only Unite or representatives of the Forum have the standing to make Article 217 applications on behalf of any relevant employee, and that all the other applicants (the “individual” applicants) in these lead cases do not have such standing. (See Northgate HR Limited v Mercy [2008] IRLR 222, at paragraph 15 of the Court of Appeal judgment).
8. Ms Hamilton’s Article 217 application was not brought within the primary time-limit provided for in the 1996 Order. However, as Mr Brett (for the respondent) realistically recognised, the position was as follows. The Forum had not been thought to have a role in relation to Northern Ireland collective redundancies and/or for the purposes of Article 216 of the 1996 Order. That was understandable, because section 8 of the Constitution of the Forum refers only to the Trade Union and Labour Relations (Consolidation) Act 1992, and does not refer to the 1996 Order. Furthermore, once the respondent raised the issue as to whether or not an individual employee would have standing to bring an Article 217 complaint, Ms Hamilton issued proceedings
(in her capacity as a Forum representative) very shortly thereafter. Against that background, and without any argument to the contrary being advanced by or on behalf of the respondent, we decide that it was not reasonably practicable for Ms Hamilton to issue her proceedings within the primary time-limit, and we decide that she did issue those proceedings within a reasonable period thereafter.
9. The implication of the foregoing is that th ere are two valid Article 217 claims which have been brought in this case. First, there is the Unite claim. Secondly, there is the Article 217 claim brought by Ms Hamilton in her capacity as a Forum representative. All of the employees of th e respondent in Northern Ireland (who were made redundant in or about the month of March 2009) are either within the scope of any protective award which we have made pursuant to Unite’s application or, if not, within the scope of any protective award which we have made pursuant to Ms Hamilton’s application.
10. In the Unite case and in the Hamilton case, it is agreed between the parties that the tribunal should indeed make a protective award. Accordingly, although the Article 217 applications which are being made by the other “lead case” applicants must be dismissed (because those other applicants do not have the “standing” to make Article 217 applications, for reasons which have been referred to above) that outcome will have no practical disadvantages from the persp ective of the individual Article 217 applicants, because all of them are either within the scope of the Unite protective award or within the scope of the Hamilton protective award.
Some key statutory provisions
11. Relevant statutory provisions are to be found in Articles 216 - 220 of the 1996 Order”. All of those provisions are contained in Part XIII of that Order; Part XIII is entitled “Procedure for handling redundancies”.
12. The Trade Union and Labour Relations (Consolidation) Act 1992 (”the 1992 Act”), which applies only to Great Britain, deals with protective awards, at Chapter II of Part IV of the 1992 Act. That Chapter is entitled “Procedure for handling redundancies”.
13. For all practical purposes, in the present context, the provisions of Chapter II (of Part IV) of the 1992 Act can be treated as being identical to the provisions of Part XIII of the 1996 Order.
14. Chapter 17 of Division E of “Harvey on Industrial Relations and Employment Law” (“Harvey”) contains a commentary on the legal effect of the relevant provisions (the collective redundancy consultation provisions) of the 1992 Act. In our view, Chapter 17 is also an accurate commentary on the principles which have to be applied in the context of Part XIII of the 1996 Order.
15. Chapter II of the 1992 Act and Part XIII of the 1996 Order have to be regarded as legislation which was enacted for the purpose of complying with the Collective Redundancies Directive (75/129/EEC), as amended.
16.
Article 216(1) of the 1996 Order provides that, where an employer is proposing to dismiss as redundant 20 or more employees at on e establishment within a period of 90 days or less, the employer must consult about the dismissals all of 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.
17. Article 216(3) provides that, for the purposes of that Article, representatives of a particular trade union are the appropriate representatives of any affected employees if those employees are of a description in respect of which that union is recognised by the employer.
18. Article 216(3) provides that if an aff ected employee is not an employee of a description in respect of which an independent trade union is recognised by the employer, other employee representatives (such as, for example, representatives of an internal employee consultative body) are appropriate representatives for the purposes of that Article.
19. Paragraph (1) of that Article makes it clear that, in the context of the Article 216 consultation duties, consultation must take place with the “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”.
20. Article 216(2) provides that the consultation must begin “in good time” and in any event:
“(a) where the employer is proposing to dismiss 100 or more employees as mentioned in paragraph (1), at least 90 days and
(b) otherwise, at least 30 days,
before the first of the dismissals takes effect”.
21. Article 216(4) provides that the relevant consultation must include consultation about ways of avoiding the dismissals, about ways of reducing the number of employees to be dismissed, and about ways of mitigating the consequences of the dismissals.
22. Article 216(4) also provides that the relevant consultation is to be undertaken, by the employer, “with a view to reaching agreement” with the appropriate representatives.
23. Article 217 of the 1996 Order provides that where an employer has failed to comply with a requirement of Article 216, a trade union is the appropriate complainant (in the context of the presentation of an Article 217 complaint to an industrial tribunal), in the case of failure relating to representatives of that trade union.
24. Article 217 of the 1996 Order also provides that where an employer has failed to comply with a requirement of Article 216, a representative of an internal employee consultative body will be an appropriate complainant (in the context of the presentation of an Article 217 complaint to an industrial tribunal), in the case of a failure relating to representatives of such an internal body.
25. Article 217(2) provides that if the tribunal finds the complaint to be well-founded, it must make a declaration to that effect and it may also make a protective award.
26. Article 217(3) explains that a protective award is an award in respect of one or more descriptions of employees, who fall within the lists specified in Article 216(3), and that any such award will order the employer to pay remuneration for “the protected period”.
27. Article 217(4) provides that the protected period (except in circumstances which are inapplicable in the present context) begins with the date on which the first of the relevant dismissals takes effect.
28. Article 217(4) also provides that the protected period must not exceed 90 days. Subject to that overall maximum, Article 217(4) provides that the protected period is to be 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 Article 216.
29. The Article 216 duties are subject to the potential defence of reasonable practicability. Article 216(9) is in the following terms:
“(9) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of paragraph (2), (4) or (6), the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances”.
Article 217(6) provides that if a question arises as to whether there were special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of Article 216, or whether the employer took all such steps towards compliance with that requirement as were reasonably practicable in those circumstances, it is for the employer to show “that there were [special circumstances] and that he did [take all reasonably practicable steps toward compliance]”.
The evidence, the issues and the arguments
30. We received no oral testimony in this case. However, we were shown a bundle of documents. We told the parties that we would have regard to any particular document within that bundle only if our attention was drawn specifically to that document by one or more of the parties. In determining this case we also paid due regard to assertions which are contained in the claim forms and in the response forms.
31. On both sides of the case, we had the benefit of excellent arguments, which were clearly presented. We are grateful to Mr O’Neill and to Mr Brett for the way in which each of them presented the arguments in this case.
32. Ultimately, in relation both to the Unite application and in relation to the Hamilton application, Mr Brett realistically conceded that there had been a breach of Article 216, that the relevant applicant was entitled to a declaration to that effect, and that there should be a protective award. The parties were agreed that any protective award should begin on 30 March 2009.
33. The respondent did not suggest there had been better or more thorough consultation with Unite than there had been with the Forum, or that there had been better or more extensive consultation with the Forum than there had been with Unite.
The facts
34. We made the following findings of fact which are relevant to the issues which we have determined:-
(1) Nortel Networks Corporation (“NNC”) is a Canadian company. It is the ultimate holding company for the Nortel group. Nortel Networks Limited (“NNL”) is the primary Canadian operating company and holding company for most of the Nortel global subsidiaries.
(2) The respondent is one of the companies within the part of the Nortel group which operates in Europe, the Middle East and Africa (often referred to as “EMEA” or “the EMEA group”).
(3) The Nortel group’s business and EMEA business is highly integrated and its successful financial performance depends on a high degree of inter-dependence between the entities in that group.
(4) The Nortel group is a global supplier of networking solutions (telecommunications, computer networks and software).
(5) The Nortel group operates on a highly integrated basis across multiple jurisdictions. The group’s business is based on the development, licensing and maintenance of intellectual property and the marketing of products and services based on that intellectual property.
(6) The Nortel group has historically operated
on a large scale. Its
year-end 2007 worldwide revenue amounted to 11 billion dollars. Prior to
January 2009, the group employed 24,000 employees worldwide.
(7) In the previous five financial years prior to January 2009, the Nortel group reported losses or break-even financial results.
(8) On 14 January 2009, Canadian companies within the group sought protection under the Canadian bankruptcy law, to facilitate the reorganisation of the Nortel group for the benefit of its creditors. The relevant Canadian group companies continue to manage their properties and operate their businesses under the supervision of the Canadian Court. On the same day, the main Nortel company in the United States together with certain other US Nortel companies, filed voluntary petitions in the Bankruptcy Court in the District of Delaware pursuant to Chapter 11 of the United States Bankruptcy Code.
(9) As a result of the precarious financial position of the Nortel group and because of what was considered to be the likely impact on the EMEA group of the insolvency proceedings in Canada and the United States, it was concluded that there was a danger that EMEA group companies’ affairs
would disintegrate as the individual companies sought protection under the
insolvency laws of their own individual jurisdictions of incorporation and/or
were unable to trade inter-group without protection.
(10) Additionally, uncoordinated insolvency filings for the EMEA companies, with each jurisdiction operating under different sets of insolvency legislation, would have hindered attempts to restructure the Nortel group’s businesses and assets as going concerns, thereby reducing returns to creditors. Accordingly, the directors of certain companies in the EMEA group took the decision to issue applications in the English High Court for the appointment of joint administrators to each of such companies. The same persons were appointed as joint administrators to the respondent to these proceedings. (This respondent company is the subject of an administration order which was granted in the English High Court.)
(11) On 14 January, therefore, no less than 20 separate Nortel companies in the EMEA group were placed into administration by orders of the English High Court. The relevant companies are situated in various countries, throughout Europe.
(12) The joint administrators’ view at the time of making these various administration applications was that the best option available to maximise value for the creditors was through a series of coordinated assets sales and, where necessary, a reorganisation of the various individual global business lines of the Nortel group.
(13) The joint administrators set out their approach to the statutory purposes of administration, for each of the companies they were appointed to, in Statements of Proposals. For the purpose of determining these proceedings, we have assumed that those Statements of Proposals were made in good faith. The administrators have, in accordance with the Statements of Proposals, continued to trade the various companies’ businesses with a view to achieving a rescue of each of the companies as a going concern, or with a view to achieving a better result for each of the companies’ creditors as a whole than would have been likely if the companies had been wound up.
(14) Approximately four months before the administration began, in September 2008, Nortel Networks Corporation (a Canadian company which is the ultimate holding company for the Nortel group) announced that, due to financial losses, planning was under way for further restructuring. Further details were provided in an announcement in November 2008 that approximately 1,300 redundancies would need to be made on a global scale under a restructuring plan. Those announcements were made available on the Nortel intranet. The content of that announcement was mentioned in general terms in the Forum on 18 November 2008.
(15) When the joint administrators were appointed on 14 January 2009, they were informed of this global announcement, but no decision had then been taken as to how many of the global redundancies were to be made within EMEA as a whole, or as to how many were to be made within the respondent company in particular.
(16) On 25 February 2009, the Nortel group unexpectedly issued an announcement from North America that there was to be a further reduction of global employees by 3,200. This was in addition to the 1,300 redundancies previously announced, making a global total of 4,500.
(17) The respondent company was, and remains, in significant financial difficulties, which is why the administration order was obtained in respect of that company. A letter and notice was sent to the respondent’s employees on 14 January 2009 to explain some aspects of the impact of the administration on the employees. Those employees were advised that they would remain employed by the respondent on the same terms as before, and that they would be paid while employed. It was confirmed that there were no plans for redundancies at that stage. “Questions and Answers” circulated on 15 January 2009 indicated that “there are no planned redundancies resulting from the administration process itself. However, Nortel continues to review its operations on an ongoing basis”. “Questions and Answers” circulated on 22 January 2009 dealt with the severance payments which would be made if employees were made redundant, and put employees on notice that there could be redundancies in the future.
(18) During this time, the administrators undertook a financial review of the businesses of the various relevant EMEA companies, including the respondent company. Given the complex and interconnected nature of these businesses (both in terms of the corporate structure and the interdependancies of many of the members of the Nortel group) this was far from being a straightforward, or quick, process: The Nortel group is a globally integrated business.
(19) The difficulties were exacerbated by the complex transfer pricing arrangements in place between the members of the Nortel group, including the respondent company. (Some members of the Nortel group provided services to other members of the group, rather than providing services directly to customers. Transfer pricing adjustments needed to be made to assess the true value of the respondent company’s business).
(20) It became clear to the administrators that the respondent was making significant losses. Its sales revenue had dropped significantly in a very short period of time since the appointment of the administrators. The increased loss was as a consequence of this declining revenue, which was accelerated by the effects of the recession and the administration.
(21) In light of this sudden and unexpected
financial situation, and the previous announcements of global redundancies, the
administrators took the view that they were entitled or obliged to take swift
action to immediately reduce the respondent’s wages bill. To do this, they
asked the business to identify roles
to be made redundant as part of the global headcount reduction. That process took several weeks. In conducting the administration, the administrators were obliged to take account of the best interests of the creditors as a whole, not just the (now) former employee- creditors.
(22) The administrators of the respondent company took a deliberate decision not to engage in the collective redundancy consultation process envisaged by Article 216 of the 1996 Order. They took the view that there was an irreconcilable conflict between the requirements of insolvency law in general and the requirements of Article 216 of the 1996 Order. They were wary of engaging in information and consultation regarding contemplated redundancies because they feared that this could result in a programme of industrial action taking place which would, in their view, jeopardise the ability of the Nortel group to protect the value in its businesses. They also feared that a process of information and consultation would produce a risk of unrest from employees.
(23) Accordingly, when the decision was taken to make more than 80 redundancies at the respondent’s Monkstown plant in Northern Ireland, in March 2009, the decision was also taken not to engage in any Article 216 consultation whatsoever.
(24) It is true that, in the course of implementing the relevant redundancies, the respondent company did provide some of the information which would have been made available to Unite and the Forum if there had been a proper compliance with the Article 216 consultation obligations. However, the information thus provided was patchy and it was provided because there was no other way of implementing the redundancies, as distinct from being provided as part of a genuine consultation process.
(25) On 27 March 2009, the managers who would carry out the relevant redundancy selection processes of the respondent company did meet with Unite. However, the purpose of that meeting was to announce to Unite what was going to happen, as distinct from engaging in any worthwhile Article 216 consultation process.
(26) Bearing in mind that consultation, in the context of Article 216, requires consultation when relevant proposals are still at a formative stage, and that it requires conscientious consideration of any responses to that consultation, the communications between the respondent company and Unite, and the communications between the respondent company and the Forum, cannot be classified as constituting meaningful consultation for the purposes of Article 216.
The legal principles
35. Article 216(9) refers to the potential defence of reasonable practicability, in the “special circumstances” referred to at that paragraph of Article 216. Insolvency per se is not a “special circumstance”. (See E/2706 of Harvey).
36. In any event, even if there are “special circumstances” the employer is not necessarily excused his duty to consult altogether. In that situation, instead, the employer must do as much towards full compliance as is reasonably practicable in the circumstances. It is only if he can prove both elements (both that there were special circumstances and that he did his reasonable best in those special circumstances) that the “special circumstances” is available to him as a liability defence. (See E/2712 of Harvey).
37. Article 216(6) of the 1996 Order provides that, for the purposes of the Article 216 consultation, the employer must disclose, in writing, to the appropriate representatives, all of the information which is listed at paragraph (6) of Article 216. The information listed there includes matters such as the reason for the employer’s redundancy proposals, the numbers and descriptions of employees whom it is proposed to dismiss as redundant, and the proposed method of selecting the employees who may be dismissed.
38. Article 216(4) requires the employer to consult with the relevant appropriate representatives “with a view to reaching agreement” with those representatives. Although courts in the United Kingdom have never asserted that there is any duty (in that context) to negotiate, it is clear from the UK case law that the aim of the relevant consultative process is to achieve an agreed solution and, as Harvey points out (at Paragraph E/2608), consultation with a view to achieving an agreed solution is difficult to distinguish from negotiations.
39. Furthermore, the English cases stress the need for genuine consultation. In the present context, “genuine” consultation means consultation which fulfils all of the following requirements:
(1) There must be consultation when the relevant proposals are still at a formative stage.
(2) The consultee must be provided with adequate information upon which to respond.
(3) The consultee must be given adequate time in which to respond.
(4) The consultor must engage in conscientious consideration of the response to consultation.
All of those points are made at E/2609 of Harvey.
40. Furthermore, an employer does not comply with the relevant provisions if, before he meets the appropriate representatives, he has already made up his mind.
41. Furthermore, in particular, he does not comply with the relevant consultation obligations merely by going through the motions of consultation. (See E/2610).
42. In GMB v Susie Radin Ltd [2004] IRLR 400, important guidance was given as to the basis upon which the length of a protected period should be calculated. In that case, the following guidance was given:
(1) The purpose of a protective award is to provide a sanction for breach by the employer of the consultation obligations; it is not to compensate the employees for loss which they have suffered in consequence of that breach.
(2) An employment tribunal 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 merely technical to a complete failure to consult at all.
(4) The deliberateness, or otherwise, of the failure may be relevant, as may be the availability, or unavailability, of legal advice about the consultation obligations.
(5) A proper approach in a case where there has been no consultation is to start with the maximum period (90 days) and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the tribunal considers to be appropriate.
(6) Because the focus is on the seriousness of the employer’s default, it is no excuse or defence that the employees in fact suffered no loss. (On this point, see Harvey E/2790).
43. The duration of a protective award, in the context of any particular establishment, is not affected by the number of potentially affected employees. (See Harvey at E/2773-2783).
Conclusions
44. We have decided, both in the Unite case and in the Hamilton case, that the protected period should be 90 days. We have arrived at those conclusions against the following background and for the following reasons.
45. We accept that, in this case, the respondent company made a deliberate decision not to engage in any collective consultation whatsoever. We are also satisfied that any relevant information which was in fact imparted was minimal, was disseminated outside the formal confines of any collective consultation process, and was no greater in extent than the information which necessarily had to be imparted to employees in general in the interests of operational efficiency. (In other words, that information had to be given in order to ensure the orderly implementation of the redundancy decisions). Furthermore, those communications, such as there were, between Unite and the administrators were in the nature of announcements from the administrators, as distinct from being part of any process of dialogue.
46. As already indicated above (at sub-paragraph (5) of paragraph 42 above), against that background, a proper approach in this case is to start with the maximum period of 90 days and to reduce it only if there are mitigating circumstances justifying a reduction.
47. We reject Mr Brett’s contention that
90 days should not be awarded in respect of an Article 216 breach in
circumstances, as here, where the employer is not proposing to dismiss 100 or
more employees. (See the Susie Radin guidance, already
referred to above, which makes no distinction between failures to consult in
the context of proposals to make 100 or more employees redundant, and failures
to consult in other cases.)
48. Furthermore, we reject Mr Brett’s contention that the duration of the protected period should be reduced because, according to the respondent company, the relevant employees have sustained no financial losses as a result of the failure to carry out the collective consultation process. In our view, it is quite clear that the purpose of a protective award is to provide a sanction for breach, as distinct from compensating employees for loss. (See paragraph 42 above.)
49. In our view, insolvency practitioners are under an obligation not just to comply with insolvency laws, but also to comply with employment laws. The obligation to maximise returns for creditors, by reducing costs as quickly as possible, has to be implemented without breaching the requirements of Article 216 of the 1996 Order.
50. A collective consultation process involves dialogue and some delay. Such dialogue and delay can reduce morale, and it can increase the risk of industrial action, but neither of those factors provide any basis, or any excuse, for failure to comply with the requirements of Article 216. It is not open to insolvency practitioners to ignore the requirements of the law on collective redundancy consultation merely because those practitioners subjectively consider such non-compliance to be in the overall best interests of the workers.
51. We agree that the administrators were faced by a highly complex situation of crisis, in which they had to do their best, in difficult circumstances, to ascertain the true financial position of the respondent company, before taking any decisions about redundancies. However, that was no excuse for by-passing the collective consultation process.
52. In summary, this is a situation in which there was no meaningful dialogue between the company and Unite, and there was no meaningful dialogue between the company and the Forum. Neither the union representatives nor the Forum representatives were provided with any meaningful additional information (beyond the information which had to be given in any event during the course of the task of implementing the redundancies). The decision to avoid collective redundancy consultation was taken deliberately. (The administrators took a conscious decision not to engage in collective redundancies consultation). The administrators had high-quality human resources advice and legal advice available to them. Their failures went to the heart of the consultation obligations. In this particular context, we note that the consultation duty incorporates an obligation to consult the appropriate representatives about ways of mitigating the consequences of the contemplated redundancy dismissals.
53. In our view, there are no mitigating factors which would make it appropriate to award less than 90 days.
54. We note that, in their defence to these
proceedings, the administrators argue that the financial situation of the
respondent company made it difficult, or impossible, to engage in a
consultation process of 90 days duration. However, even if one were to
assume that that contention is correct, we see nothing about the circumstances
of this case which provides any adequate basis for any suggestion that the
administrators could not (presumably within a collective redundancies
consultation period of much shorter duration) have engaged in a high quality
consultation process with Unite or that they could not have engaged in a high
quality consultation process with the Forum, or that they could not have
engaged in high quality consultation processes with both of them.
Chairman:
Date and place of hearing: 21 April 2010, Belfast.
Date decision recorded in register and issued to parties: