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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hamilton v Nortel Networks UK Ltd (in adm... [2011] NIIT 321_10IT (20 January 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/321_10IT.html
Cite as: [2011] NIIT 321_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 321/10
CLAIMANT: 1. Andrea Hamilton
2. William Irvine
RESPONDENT: Nortel Networks UK Ltd (in administration)
DECISION ON A REVIEW
The application for review of the second-named claimant (Mr Irvine) is successful. The tribunal has decided to vary its main decision in this case, so that the following is substituted for the relevant part of the main decision:
(A) Ms Andrea Hamilton, who was a Northern Ireland employment representative on Nortel’s “UK Employee Forum” (“the Forum”) has made an 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 in relation to “employee representatives” (in her capacity as a member of the Forum).
(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 during the period beginning in or about the month of March 2009 and ending in or about the month of June 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 protected period.
(F) The protected period began on 30 March 2009 and lasted for 90 days.
Constitution of Tribunal:
Chairman: Mr Paul Buggy
Members: Ms Francesca Graham
Mr Michael Grant
Appearances:
The applicant for this review, Mr Irvine, was self-represented.
There was no appearance on behalf of the respondent. The Department for Employment and Learning was represented by Mr Peter Curran of its Redundancy Payments Branch.
REASONS
1.
It seems unlikely that Nortel
will be able to pay any award which may become payable as a result of this
application for review. Accordingly, although Nortel put in a response to this
application (for review), which argued that the review should not be granted,
Nortel decided not to be represented at this hearing. That was an entirely
appropriate position for Nortel to take.
2.
The Department participated, in
the context of this application for review, pursuant to Rule 51 of the
Industrial Tribunals Rules (“the Rules”). Rule 51 provides that the Department
for Employment and Learning is entitled to appear as if it were a party and be
heard at any hearing in relation to proceedings which may involve a payment out
of the Northern Ireland National Insurance Fund, and in that event it shall be
treated for the purposes of the Rules as if it were a party. As usual, the
tribunal is grateful for the constructive and helpful role which Mr Curran has
played in connection with the present proceedings.
3.
In June 2010, we issued our
Decision (“the Main Decision”) in respect of seven lead cases which had been
brought by various applicants, all of whom sought a protective award. The only
one of those lead cases which matters in the present circumstances is the case
of Andrea Hamilton (321/10).
4.
The present Decision, in relation
to Mr Irvine’s application for review, should be read in conjunction with the
Main Decision. For the purposes of deciding the present application, we adopt
the findings of fact and legal principles which are set out in the Main
Decision, except to the extent (if any) that the contrary is indicated below.
5.
At the end of March 2009, more
than 80 redundancies were declared at Nortel’s Monkstown plant in Northern Ireland. All of those 87 redundancies were clearly within the scope of the
protective award which the tribunal made in the Main Decision. However, in or
about the end of June 2009, approximately 15 more redundancies were declared at
the Monkstown plant.
6.
Mr Irvine was one of the people
who were made redundant in June.
7.
Mr Irvine argues that he is already
within the scope of the protective award which was made by the tribunal in the
Main Decision. (He claims to be ” …. [an] employee of a description to which
[that] award relates …” In order to vindicate that alleged entitlement, Mr
Irvine has presented a complaint to an industrial tribunal pursuant to Article
220 of the 1996 Order. By agreement between Mr Irvine and the Department, the
hearing of that application has been postponed. (In view of the outcome of
this application for review, that Article 220 application will now be
unnecessary).
8.
Alternatively, Mr Irvine asserts
that the Main Decision of the tribunal, as it relates to the Hamilton
application, should be varied so as to explicitly include the redundancies
which were declared in or about June 2009. The aim of his application for
review is to achieve that outcome.
9.
Originally, Mr Irvine was not a
party to the Hamilton application. He was added as a party, after the Main
Decision had been issued, in order to make it possible for him to pursue this
application for review. (Such a practice, of adding new claimants after the
event, so that they could apply for review in respect of the scope of a
protective award, was recommended by the Employment Appeal Tribunal in Harford
and Others v Secretary of State for Trade and Industry, UKEAT/0313/07/LA).
This application for review has not been made within the stipulated review
time-limit. (We have decided to extend that time-limit).
10.
The position of Nortel, as
expressed in its response to this application for review, is that there were
two entirely separate and distinct separate sets of redundancies, one set
occurring in March and a second set occurring in June, and that the June
redundancies are therefore not within the scope of the protective award which
we made in the Main Decision.
11.
The Department takes a similar
view, and reminds us that an employment tribunal in Great Britain treated March
2009 redundancies declared by Nortel, and June 2009 redundancies also declared
by Nortel, as constituting two separate rounds of redundancies, each of which
attracted a separate protective award.
12.
It seems to us that the GB
Tribunal decision is of limited assistance to us, in deciding this application
for review, because the GB decision was made only in respect of establishments
in Great Britain, and because it was based on the particular evidence that was
made available to that tribunal in that case.
13.
All of the lead cases which were
the subject of the Main Decision were cases which involved only people who had
been declared redundant in or about March 2009. None of them involved people
who had been declared redundant in or about June 2009. During the course of
the main hearing, no reference was made to any redundancies which had occurred
in June.
14. If the June redundancies were an entirely new set of redundancies, and were entirely unrelated to the March redundancy situation, they would trigger a new obligation, on the part of Nortel, to collectively consult, but only if the June redundancies at Monkstown amounted to at least 20 (whereas, or course, they amounted only to approximately 15 redundancies).
15. The threshold of 20 is provided for in Article 216(1), which provides as follows:
“(1) Where an employer is proposing to dismiss
as redundant 20 or more employees at one establishment within a period of 90
days or less, the employer shall consult about the dismissals all 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”.
16. Article 217 gives guidance as to the scope of any protective award which is made as a reaction to any particular failure to carry out the Article 216 collective consultation obligation. According to Article 217(3), the position is as follows:
(3) A protective award is an award in respect of one or more descriptions of employees –
(a)
who have been dismissed as
redundant, or whom it is proposed to dismiss as redundant and
(b)
in respect of whose dismissal or proposed
dismissal, the employer has failed to comply with a requirement of Article
216”.
17.
If a particular protective award
is to apply in respect of any specific group of employees, three preconditions
have to be met in respect of that group. If we consider the preconditions set
out in Article 217(3) in relation to the June 2009 redundancies, the position
seems to be as follows.
18.
First, the June redundancy people
all fell within the description (type) of employees to which the Hamilton
protective award related, because all of them, the tribunal is informed, were
located within parts of the Monkstown plant in respect of which Unite did not have
collective bargaining recognition, and those were work-units which fell within
the scope of the Forum’s operations. Secondly, the June redundancy candidates
have all been dismissed as redundant. Accordingly, the real issue is whether the
third of the Article 217 preconditions has been satisfied. The third
precondition is that the dismissal or proposed dismissal of the June redundancy
candidates must have fallen within the scope of the collective consultation
obligation which the employer breached in relation to the March redundancy
candidates.
19. In the context of this application for review, the most relevant part of the Main Decision, is paragraph (D), which was in the following terms:
“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.”
20.
In the course of the hearing of
this application for review, we received oral testimony only from Mr Irvine. He
was informed by his line manager on 22 June 2009 that he was being made
redundant. All of the other June redundancy candidates were informed at around
the same time. The redundancies took more or less immediate effect. Nobody had
ever said to him, during the period from March 2009 until 22 June 2009, that
there might be another round of redundancies.
21. When Ms Hamilton made her application in the main proceedings, she did so on the basis that the application was relating only to March redundancy candidates. That was entirely appropriate, from Ms Hamilton’s point of view, because the purpose of her application was to cover the situations of all of those Unite members who had been made redundant in 2009, but who worked in parts of Nortel in respect of which Unite was not recognised for collective bargaining purposes. All of that group of people had been declared redundant in March 2009, and none of them had been declared redundant in June 2009. However, as the Harford judgment shows, the proper scope of a particular protective award has to be independently ascertained, and cannot be cut down merely because the scope of the application for a protective award is narrower than the scope of the persons who are “… affected by the proposed dismissal” or who … may be affected by measures taken in connection with those dismissals”.
Conclusions
22.
The provisions in respect of
protective awards are to be found in Part XIII of the 1996 Order. Those
provisions have to be regarded as being intended to implement the requirements of
Council Directive 98/59/EC; Part XIII has to be construed accordingly.
23.
It is clear that the inclusion of
a threshold requirement, that the employer must be proposing to dismiss at
least 20 employees at the relevant establishment, is designed to avoid imposing
onerous obligations upon employers in respect of small-scale redundancies.
24.
We have not found this an easy
case to decide. In our view, it is a border-line case. However, we have
ultimately come to the conclusion that the March redundancies and the June
redundancies have to be regarded as constituting a single set of redundancies.
The June redundancies were announced by 22 June, still within the period of 90
days beginning on 31 March. No doubt there are many redundancy situations in
which an employer initially envisages that he will only have to make a
particular number of staff redundant, but later realises, as a result of the
implementation of that redundancy process (the collective consultation process
in respect of that number of contemplated redundancies) that it has to make
more redundancies than it had initially planned. That may well be what has
happened in this instance. Certainly, we have no clear evidence that the June
redundancies were an entirely separate event, or that they had no connection
with the March redundancies.
25.
It seems to us that when
redundancies take place in two stages, it is easier to regard the two stages as
part of a single process, if the second round of redundancies takes place very
soon after the first round of redundancies. It also seems to us that it is
more difficult to regard the two rounds as part of the same process, if the
second round takes place long after the end of the first round.
26.
Thus, if the redundancies which
were in fact declared in June 2009, had instead been declared in March 2010, we
would have had no hesitation in regarding the two sets of redundancies as being
entirely separate and distinct from one another; and, on the other hand, if the
June 2009 redundancies had in fact been declared in April 2009, we think that
nobody would have had any hesitation in accepting that the two sets of
redundancies were sufficiently interconnected to fall within the scope of the
March 2009 collective consultation obligation.
27.
In our view, the June
redundancies fall within the outer edges of those redundancies which can be
properly regarded as falling within the scope of the March collective
consultation obligation, but they are nevertheless within those edges.
28.
Accordingly, the wording of the
Main Decision, as it applies in respect of the Hamilton application, must be
varied to the extent indicated at the beginning of this Decision.
29.
In the Main Decision, we found
that Nortel, in the context of the March 2009 dismissals, had failed to carry
out any meaningful Article 216 collective consultation.
As Article 216(4) makes clear, relevant consultation must include consultation
about ways of avoiding the dismissals, ways of reducing the number of employees
dismissed, and ways of mitigating the consequences of the dismissals. If such
consultation had been carried out in March 2009, the possibility that it would
become necessary to declare the June redundancies might well have been brought
to the attention of Forum representatives at that point. On that basis alone,
Mr Irvine and the other June redundant employees can be properly regarding as being
persons who, at March 2009, were employees:
“… who may be affected by the proposed dismissals [the dismissals which were being proposed at the end of March 2009] or may be affected by measures taken in connection with those dismissals ...”
Chairman:
Date and place of hearing: 19 November 2010, Belfast.
Date decision recorded in register and issued to parties: