Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/1655_12IT.html
Cite as: [2012] NIIT 01655_12IT, [2012] NIIT 1655_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1655/12

CLAIMANT: Colin Sloan

RESPONDENT: Rotary Services Limited (In Administration)

DECISION (PROTECTIVE AWARD)

(A) The claimant’s protective award complaint is well-founded.

(B) I have decided to make a protective award in respect of this claimant.

(C) It is ordered that the respondent shall pay remuneration for the protected period.

(D) The protected period began on 1 August 2012 and lasted for 90 days.

The attention of the parties is drawn to the Recoupment Notice below.

The address of the respondent is: c/o Chad Griffin and Simon Kirkhope, FTI Consulting LLP, Holborn Gate, 26 Southampton Buildings, London WC2A 1PB.

Constitution of Tribunal:

Chairman (sitting alone): Mr P Buggy

Appearances:

The claimant was self-represented.

The respondent was debarred from participating in the hearing because it did not present a response within the relevant time-limit.

REASONS

1. This is one of four cases which were heard together, on 27 November 2012. In each of those cases, it was agreed by the claimant that evidence in any of the other three cases was to be treated as evidence in his or her own case. In the course of the hearing, I received sworn oral testimony from each of the four claimants. I regarded all of those claimants as truthful witnesses.

2. The four cases (designated by the surname of the claimant and the case reference) were as follows:

(1) Lavery (1632/12)

(2) Geddis (1624/12)

(3) Sloan (1655/12)

(4) Hanlon (1527/12)

3. The claimant was an employee of the respondent. The workforce to which the claimant belonged was not unionised. No relevant employees had been elected. The employer had made no arrangements in relation to the election of relevant employee representatives. More than 50 employees, within the workforce to which the claimant belonged, were dismissed by reason of redundancy from 1 August 2012 onwards, during a period of less than one month. Prior to those dismissals, no collective consultation took place. I am unaware of any special circumstances which rendered it not reasonably practicable for this employer to carry out a collective consultation process.

4. In deciding to make a protective award, and in determining the period of the protective award, I have had regard to the sworn oral testimony of the claimants, in the four cases mentioned above, and to the comments made in the Court of Appeal judgment in Haine v Day [2008] IRLR 642, especially at paragraphs 61-68 of the judgment.

Recoupment Notice

[1] In the context of this Notice, “the relevant benefits” are jobseeker’s allowance, income support and income-related employment and support allowance.

[2] Until a protective award is actually made, an employee who is out of work may legitimately claim relevant benefits because, at that time, he or she is not (yet) entitled to a protective award under an award of an industrial tribunal. However, if and when the tribunal makes a protective award, the Department of Social Development (“the Department”) can claim back from the employee the amount of any relevant benefit already paid to him or her; and it can do so by requiring the employer to pay that amount to the Department out of any money which would otherwise be due to be paid, to that employee, under the protective award, for the same period.

[3] When an industrial tribunal makes a protective award, the employer must send to the Department (within 10 days) full details of any employee involved (name, address, insurance number and the date, or proposed date, of dismissal). That is a requirement of regulation 6 of the Regulations which are mentioned below.

[4] The employer must not pay anything at all (under the protective award) to any such employee unless and until the Department has served on the employer a recoupment notice, or unless or until the Department has told the employer that it is not going to serve any such notice.

[5] When the employer receives a recoupment notice, the employer must pay the amount of that recoupment notice to the Department; and must then pay the balance (the remainder of the money due under the protective award) to the employee.

[6] Any such notice will tell the employer how much the Department is claiming from the protective award. The notice will claim, by way of total or partial recoupment of relevant benefits, the “appropriate amount”; which will be computed under paragraph (3) of regulation 8 of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 (” the Regulations”).

[7] In the present context, “the appropriate amount” is the lesser of the following two sums:

(a) The amount (less any tax or social security contributions which fall to be deducted from it by the employer) accrued due to the employee in respect of so much of the protected period as falls before the date on which the Department receives from the employer the information required under regulation 6 of the Regulations, or

(b) The amount paid by way of, or paid on account of, relevant benefits to the employee for any period which coincides with any part of the protected period falling before the date described in sub-paragraph (a) above.

[8] The Department must serve a recoupment notice on the employer, or notify the employer that it does not intend to serve such a notice, within “the applicable period applicable” or as soon as practicable thereafter. (The period applicable is the period ending 21 days after the Department has received from the employer the information required under regulation 6).

[9] A recoupment notice served on an employer has the following legal effects. First, it operates as an instruction to the employer to pay (by way of deduction out of the sum due under the award) the recoupable amount to the Department; and it is the legal duty of the employer to comply with the notice. Secondly, the employer’s duty to comply with the notice does not affect the employer’s obligation to pay any balance (any amount which may be due to the claimant, under the protective award, after the employer has complied with its duties to account to the Department pursuant to the recoupment notice).

[10] Paragraph (9) of regulation 8 of the 1996 Regulations explicitly provides that the duty imposed on the employer by service of the recoupment notice will not be discharged if the employer pays the recoupable amount to the employee, during the “postponement period” (see regulation 7 of the Regulations) or thereafter, if a recoupment notice is served on the employer during that postponement period.

[11] Paragraph (10) of regulation 8 of the 1996 Regulations provides that payment by the employer to the Department under Regulation 8 is to be a complete discharge, in favour of the employer as against the employee, in respect of any sum so paid, but “without prejudice to any rights of the employee under regulation 10 [of the Regulations]”.

[12] Paragraph (11) of regulation 8 provides that the recoupable amount is to be recoverable by the Department from the employer as a debt.

Chairman:

Date and place of hearing: 27 November 2012, Belfast.

Date decision recorded in register and issued to parties:

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