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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Spence v Fin Engineering Limited (In Ad... [2014] NIIT 185_14it (05 August 2014)
URL: http://www.bailii.org/nie/cases/NIIT/2014/185_14it.html
Cite as: [2014] NIIT 185_14it
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THE INDUSTRIAL TRIBUNALS
CASE REF: 185/14
CLAIMANT: Michael Alan Spence
RESPONDENT: Fin Engineering 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 7 December 2012 and lasted for 90 days.
The attention of the parties is drawn to the Recoupment Statement below.
The address of the respondent is: c/o John Houston
Begbies Traynor Group Ltd
Scottish Provident Building
7 Donegall Square West
BELFAST
BT1 6JH
Constitution of the Tribunal:
Employment Judge (sitting alone): Employment Judge Buggy
Appearances:
The claimant was self-represented.
The respondent was debarred from participating in the proceedings because it had not presented a response.
REASONS
1. The claimant was an employee of the respondent. The workforce to which he belonged was not unionised. No relevant employee representatives had been elected. The employer had made no arrangements in relation to the election of a relevant employee representative. More than 20 employees were made redundant by the employer, on 7 December 2012, with immediate effect from that date. Prior to those dismissals, no collective consultation took place. The employer has not shown that there were any special circumstances which rendered it not reasonably practicable for the employer to carry out any collective consultation process whatsoever. Furthermore, the employer has not shown that it took such steps, towards compliance with the requirements of Article 216 of the Employment Rights (Northern Ireland) Order, as were reasonably practicable in such circumstances.
2. 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 which I received in these proceedings, 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.
3. The claimant was dismissed, by reason of redundancy, by the employer, with effect from 7 December 2012.
4. He did not bring the present proceedings, in which he makes a complaint under Article 217 of the Employment Rights Order (“ERO”) until 24 January 2014, nearly 14 months after the date of the relevant dismissals.
5. I have seen a medical report from the claimant’s GP. That report shows that, since 2010, the claimant has endured chronic physical and mental health problems, for which he is receiving ongoing treatment. The GP pointed out that he finds the claimant to be “a most genuine patient and [I] am happy to provide this evidence”.
6. I am satisfied that the claimant did not become aware of the possibility of making an Article 217 complaint until he had a chance meeting with Mr Norman Moorhead, an ex-colleague, on a date after Christmas 2013. I am satisfied that, until that chance meeting, the claimant had had no interaction with any of the former employees of the employer, at any time after the date of the dismissals.
7. Paragraph (5) of Article 217 contains the time limits in respect of protective award complaints. Paragraph (5) provides as follows:
“(5) An industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal -
(a) Before the date on which the last of the dismissals to which the complaint relates takes effect, or
...
(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented during that period of three months”.
8. Accordingly, paragraph (5) of Article 217, in effect, contains two relevant time-limits. The first time-limit, the primary time-limit, is contained in sub-paragraph (a). The secondary time-limit is contained in sub-paragraph (c).
9. The secondary time-limit does not become even potentially available unless I am satisfied that it was not reasonably practicable for the complaint to be presented within the primary time-limit.
10. In the context of “reasonable practicability”, in relation to complaints to an industrial tribunal, the issue is whether or not it was reasonably feasible for a claimant to make the relevant complaint within the primary time-limit. In that context, it is clear that ignorance of one’s legal rights can make it not reasonably practicable to present a complaint, but only if that ignorance is reasonable.
11. In effect, the time-limits which apply in the context of protective award complaints are broadly the same as the time-limits which apply in relation to unfair dismissal complaints. Courts and tribunals have consistently held that, as a general rule, ignorance as to one’s entitlement to make a complaint of unfair dismissal is not reasonable ignorance. This is on the basis that the general public are now well aware of entitlements to make unfair dismissal complaints.
12. However, the situation is different in respect of protective award complaints. The availability of remedies in respect of collective redundancy consultation failures, the threshold (of 20 redundancies) and the circumstances in which an individual, as distinct from a trade union or employee forum representative, can seek such remedies, are all matters which are not generally well known.
13. Accordingly, I have decided that the claimant’s ignorance as to his entitlements in relation to making a protective award complaint was reasonable ignorance. (I would have arrived at that conclusion even if the claimant had not had the considerable physical and mental health difficulties which he has had to endure over recent years).
14. Accordingly, I am satisfied that it was not reasonably practicable for the claimant to comply with the relevant primary time-limit.
15. I next consider the issue of whether the “further period of delay was reasonable”. In considering that issue, I have taken particular account of the following:
(1) I am satisfied, on the basis of the oral testimony which I received in this case, that the claimant’s ignorance as to his legal entitlements persisted until after Christmas 2013.
(2) I accept that, because of the claimant’s health difficulties, it was not a simple matter to organise the bringing of these proceedings, during the period which began on the date of the claimant’s meeting with Mr Moorhead, and ended with the date of presentation of the claim to the industrial tribunals.
(3) The period of further delay, after the expiration of the primary time-limit, was of lengthy duration. (It lasted for nearly eleven months).
(4) The employer will not be making any payment on foot of any protective award which I make. The Department for Employment and Learning will be making that payment. I think it unlikely that the claimant’s delay in making this complaint will prejudice the Department. (The prejudice sustained as a result of the late making of complaints has to be distinguished from the prejudice which is caused by the making of claims at all).
(5) The claimant’s considerable physical and mental health difficulties have made him socially very isolated (and, therefore, less likely to become informed about legal entitlements).
16. Had it not been for the claimant’s considerable physical and mental health difficulties, I would have been inclined to have concluded that the “further period” of delay was not “reasonable” in all the circumstances. However, I have factored-in the claimant’s physical and mental health difficulties, which I am sure have considerably increased his social isolation. Having done so, I have decided, on balance, and not without hesitation, that, in the very unusual circumstances of this case, the “further period” of delay was “reasonable”.
Recoupment Statement
[1] In the context of this Notice:
(a) “the relevant benefits” are jobseeker’s allowance, income support and income-related employment and support allowance; and
(b) any reference to “the Regulations” is a reference to the Employment Protection (Recoupment of allowance and Income Support) Regulations (Northern Ireland) 1996 (as amended).
[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 for 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 termination of employment). That is a requirement of regulation 6 of the Regulations.
[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 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 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.
Employment Judge: _________________________
Date and place of hearing: 3 July 2014, Belfast.
Date decision recorded in register and issued to parties: