Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/02464_10IT.html
Cite as: [2010] NIIT 2464_10IT, [2010] NIIT 02464_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF:

CLAIMANTS: 1. Maura Allen 2478/10

2. Michelle Barry 2477/10

3. Wendy Black 2476/10

4. Yu-Chin Chung 2475/10

5. Claire Diamond 2660/10

6. Karen Hamilton 2473/10

7. Vivienne Hunter 2472/10

8. Carrie Johnston 2471/10

9. Tori McAnlis 2470/10

10. Lauren McDowell 2469/10

11. Joanne McLaughlin 2468/10

12. Krisztina Pataki 2467/10

13. Jill Stewart 2466/10

14. Patricia Taulo 2465/10

15. Gemma Walker 2464/10

16. Rachel Davis 2661/10

17. Carol Dobbin 2660/10

18. Margaret Donnelly 2659/10

19. Dolores Patterson 2663/10

20. Pauline Webb 2662/10

RESPONDENT: The Belfast Clinic Limited (In Administration)

DECISION

The decision of the tribunal is that the claimants are entitled to a protective award and to a declaration that the respondent did not comply with the provisions of Article 216 of the Employment Rights (Northern Ireland) Order 1996.

Constitution of Tribunal:

Chairman (sitting alone): Mr Patrick Kinney

Appearances:

The claimants 1 – 15 were represented by Mr O’Neill, Solicitor, of Thompsons McClure, Solicitors.

The claimants 16 – 20 were represented by Mr Guerin, Solicitor, of Campbell Fitzpatrick, Solicitors.

The respondent did not enter a response to any of the claims.

1. The claimants presented claims for protective award. The respondent did not enter a response to any of the claims. The claimants have sought and obtained the consent of the administrators to their claim for a protective award. In arriving at the facts found by the tribunal, I have regard to the claimants’ claim forms, to witness statements provided by several of the claimants and to oral evidence provided at hearing. I have also been assisted by written submissions made by Mr O'Neill.

Facts found

2. Each of the claimants were employed by the respondent. Their employment ceased on 16 August 2010. There was no warning of the closure of the business. There was no consultation made with any of the claimants. Although the claimants were members of different trade unions there was no recognition of the trade unions by the respondent nor were any employee representatives elected or any other group of employees appointed in a consultative capacity. There was no notice of any kind from the respondent of any impending redundancy situation. Some of the claimants were told by the Chief Executive of the respondent in person on 16 August 2010 that the business was closing with immediate effect. Other heard either by word of mouth or subsequently that day by a phone call from the administrators.

3. Under the provisions of Articles 216 – 220 of the Employment Rights (Northern Ireland) Order 1996 where an employer is proposing to dismiss 20 or more employees as redundant it must consult with the appropriate representatives of the employees. Where an employer has failed to consult a complaint may be presented to an industrial tribunal. If there are no representatives of the employees then the claim may be brought by an affected employee. If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award. The protective award is in respect of the protected period which begins with the date on which the first of the dismissals to which the complaint relates takes effect and is of such length as the tribunal determines to be just and equitable in all the circumstances, but shall not exceed 90 days. It is for the employer to show whether or not there were any special circumstances which rendered it not reasonably practical for the employer to comply with the requirements of Article 216.

4. In calculating the length of the protected period the court gave guidance in the case of GMB v Susie Radin [2004] IRLR 400. The court said that the tribunal has a wide discretion to do what is just and equitable in all the circumstances. A proper approach where there is no consultation is to start with the maximum period of 90 days and reduce it only if there are mitigating circumstances justifying a reduction.

5. It is clear in this case that there has been no consultation whatsoever by the respondent and the respondent is in breach of Article 216 of the Employment Rights (Northern Ireland) Order 1996. The respondent took no steps at all to provide any consultation and the tribunal has no evidence of any special circumstances in existence to mitigate this failure. The obligation is on the respondent to show such special circumstances and insolvency of itself is not a special circumstance.

6. I determine that the claimants’ complaints are well-founded and I make a declaration in respect of each claimant accordingly. Following the guidance in Radin I determine that the correct protected period in this case is 90 days commencing with the first dismissals on 16 August 2010. I make an order for a protective award and I order that the respondent pay remuneration for the protected period to all the named claimants.

7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 18 February 2011, Belfast

Date decision recorded in register and issued to parties:

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