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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Allen v Regency Spinning Ltd (in a... [2012] NIIT 07479_09IT (03 January 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/07479_09IT.html
Cite as: [2012] NIIT 07479_09IT, [2012] NIIT 7479_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7479/09
CLAIMANT: Charles Terence Allen
RESPONDENT: Regency Spinning Limited (in administration)
DECISION
The decision of the tribunal is that the claimant is entitled to a protective award.
Constitution of Tribunal:
Chairman (sitting alone): Mr P Kinney
Appearances:
The claimant appeared in person and represented himself.
The respondent did not appear and was not represented.
Issue
1. The claimant presented a claim for a protective award, presented to the tribunal at the same time as claims from a number of his colleagues. The respondent did not enter any response to the claims. The claimant sought the consent of the administrators who advised that as the administration had completed they no longer had the power to grant the consent. The other claimants, who presented their claims at the same time as the claimant, then sought and obtained permission of the High Court to continue their proceedings. A decision in their cases was issued on 28 February 2011. The claimant has now obtained the permission of the High Court to continue with his proceedings. He also has to deal with the fact that his claim was brought outside the time-limit laid down for bringing a claim for protective award.
Findings of fact
2. The claimant was employed by the respondent and his employment ceased on 8 November 2007. He had no warning of the closure and shortly after his employment terminated he met representatives of the administrators who gave him forms to complete for any outstanding amounts due to him. There was no trade union recognised in the workplace as having collective bargaining rights. There was no notice of any kind from the respondent of any impending redundancy situation. There were more than 20 in the workforce.
3. The claimant’s factual situation is identical to those facing his other colleagues (Conroy & Others, Case Reference No: 6826/09). He was advised by the administrators that all his statutory entitlements would be met. After some protracted communications and correspondence with the administrators the claimant assumed that he had been paid everything he was entitled to. The claimant had no knowledge of his entitlement to seek a protective award. When the claimant became aware that there was a possible entitlement he sought urgent advice and presented his claim. The claimant contended that he had been led to believe by the administrators that he had received everything from his employment that he was entitled to.
The law
4. Under the provisions 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. If a complaint is made of breach of the duty to consult and the tribunal finds the complaint well-founded, it must make a declaration to that effect and may also make a protective award. The protected period begins on the date the dismissal takes effect and must not exceed 90 days.
5. In calculating the length of the protected period, guidance is provided in the case of GMB v Susie Radin [2004] IRLR 400. 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. The employer may show special circumstances which render it not reasonably practicable to comply with the requirement to consult. Insolvency per se is not a special circumstance.
6. There is a time-limit for bringing a claim for protective award. It must be brought within three months of the date of the dismissal to which the complaint relates. The tribunal has a discretion to extend that time if it is satisfied that it was not reasonably practicable for the complaints to be presented during that three month period and, where appropriate, it is further satisfied that the complaints were brought within such further period as the tribunal considers reasonable.
Tribunal’s conclusions
7. I have already considered the circumstances of similar claims in the case of George Conroy & Others v Regency Spinning Limited – in administration, Case Reference No: 6826/09 in a decision which was registered on 28 February 2011. The discretion should be exercised and the decision based on the facts of each individual case. In this case I am satisfied that it was not reasonably practicable for the claims to be brought within the original three month period. The claimant had his employment terminated summarily. This was followed by a period of some confusion when the administrators attempted to establish order but in doing so gave assurances to the employees that all matters were being dealt with and all entitlements would be met. I accept that the claimant was not aware of his right to seek a protective award. Faced with the sudden and stressful closure of the employer’s business and the assurances of the administrators that all their entitlements were being dealt with, the claimant legitimately accepted those assurances. I am further satisfied that when the claimant became aware of his right to make a claim he moved speedily and appropriately to seek advice and present his claim. I have decided, therefore, in the particular circumstances of this case to exercise my discretion to extend time and to accept the claimant’s claim.
8. It is clear in this case that there has been no consultation whatsoever by the respondent. The tribunal has no evidence of any special circumstances to mitigate this failure. The obligation is on the respondent to show such special circumstances.
9. I determine that the claimant’s complaint is well-founded and I make a declaration accordingly. Following the guidance in Radin, I determine that the correct protected period in this case is 90 days, commencing with dismissal on 8 November 2007. I order that the respondent pay remuneration for the protected period to the claimant.
10. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 16 December 2011, Belfast
Date decision recorded in register and issued to parties: