Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    872/14 and Others

 

 

 

CLAIMANT:           William McGilligan and Others

 

 

RESPONDENT:      KPL Contracts Ltd (In Administration)      

 

 

 

REMEDIES DECISION (ARTICLE 217 DEFAULT JUDGEMENT)

I refer to an Article 217 Default Judgement (Liability Only) which was issued in respect of these cases on 21 October 2014.  The present Decision contains my determinations in respect of remedies in all the cases which were the subject of that 21 October 2014 Judgement (“the liability judgment”). 

Accordingly the present Decision should be read in conjunction with the liability judgment.  The relevant determinations are as follows:

(A)     I have decided to make a protective award in respect of the descriptions of employees who are specified below (“the specified employees”).

 

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

 

(C)     The protected period began on 21 February 2014 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 PricewaterhouseCooper LLP

                                                  Waterfront Plaza

                                                  8 Laganbank Road

                                                  BELFAST

                                                  BT1 3LR.

 

Contribution of Tribunal:

 

Employment Judge (sitting alone):      Employment Judge Buggy

 

Appearances:

 

The claimants in the listed cases (see below) bearing reference numbers 872/14-880/14 inclusive were represented by Ms M Gavin Solicitor.

 

The claimants in all of the other listed cases were represented Mr J O’Neill Solicitor.

 

The respondent was not represented.

 

 

REASONS

 

1.       I refer to the decision of an industrial tribunal in Dempsey and Others v David Patton and Sons (NI) Ltd (In Administration) [Case Ref. No: 947/13 and Others, decision issued on 4 April 2014].  In the present case, I adopt and apply the statements of legal principles which were set out in Dempsey.

 

2.       This is my remedies decision in respect of all of the complaints which are referred to as “the listed cases” in the liability judgement.  (Such cases are also referred to as “the listed cases” below).

 

3.       In each of the listed cases, the claimant made a complaint under Article 217 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”).  In essence, in each listed case, the complaint is that, within the context of redundancies which were carried out on 21 February 2014, no collective consultation, of the kind which is envisaged in Article 216 of ERO, took place.

 

4.       In the liability decision, I decided that each such complaint was well-founded.

 

5.       Accordingly, as I am obliged to do, I made a declaration to that effect (within the liability judgment).

 

6.       A remedies hearing was held on 7 November 2014.  This Decision sets out my determinations in respect of remedies in the listed cases.

 

7.       I refer in particular to the statement of the law which is set out at paragraphs 75-80 of Dempsey.  In light of the principles which were explained in Haine v Day [2008] IRLR 642, as quoted at paragraphs 78-80 of Dempsey, I am sure that the only appropriate determination is that a protective award should be made in the listed cases.  I do make that protective award.

 

8.       The commencement date of this protective award is the date on which “... the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier”.  (See Article 217(4) of ERO).  The earliest of the relevant dismissals took place on 21 February 2014.  Therefore, the commencement date of the protective award is the latter date.

 

9.       In considering the duration of the protective award, I have noted the statements of principle which are set out at paragraphs 84-86 of Dempsey.  I have applied those principles in the listed cases.  Having done so, I have decided that there will be a protective award of 90 days.  I have no reason to believe that there was any relevant collective consultation.  I also have no information that there were any mitigating circumstances which would justify a reduction in the duration of the protected period. 

The personal scope of the award

 

10.     I have decided to make a single protective award as a remedy in respect of all of these conjoined listed cases.  In deciding upon the personal scope of that award, I have noted the statements of legal principles which are set out at paragraphs 267-309 of Dempsey and at paragraphs 13-20, and 25-28 of Glendinning v Mivan (No. 1) Ltd (In Administration) [Case Ref. No. 470/14, decision issued during December 2014].  I have applied those principles to the listed cases.

 

The specified employees

 

11.     This protective award applies to all of the following descriptions of employees (“the specified employees”):

 

          (1)      The claimants in all the listed cases.

 

(2)      All of the other employees of the respondent who have been dismissed (by the respondent) as redundant, or whom it is proposed to dismiss as redundant, at any time from 21 February 2014 onwards.

 

12.     As I pointed out at paragraph 29 of Glendinning, the practical effect of this decision is to put the employees of the respondent in precisely the same position (no better, although also no worse) as they would have been in if either of the following two situations had existed:

 

          (1)      If a trade union had had collective bargaining recognition in relation to all of the staff; or

 

          (2)      if there was no recognised trade union, but a workforce-wide employee forum had existed.

 

13.     The Department for Employment and Learning (“DELNI”) has the right to participate in a hearing, such as the hearing in this case, and to be treated as though it had been joined as a party to the proceedings.  I was glad that DELNI chose to participate in these proceedings, through the attendance of Mr Peter Curran.  I asked the claimants’ representatives and Mr Curran for views in relation to the proper scope of any protective award.  In summary, the various positions were as follows.  First, both of the representatives of listed claimants were neutral on the question of whether or not the protective award should apply to persons who had not brought Article 217 complaints.  Secondly, in the context of the scope of the protective award, Mr Curran’s comments focused on practicalities rather than principles.  He told me that, if a person was not named within the relevant Article 217 Decision, DELNI might well decide not to make a payment, pursuant to Article 227 of ERO, unless and until that individual had obtained a decision from an industrial tribunal, pursuant to an Article 220 claim.

 

Consequential directions

 

14.     I refer to Regulation 6 of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 [No. 459].  That Regulation provides that, where an industrial tribunal makes a protective award against an employer, that employer is under a legal obligation to give to the Department for Social Development (“DSD”) the following information in writing:

 

          (1)      The name, address and national insurance number of every employee to whom the award relates, and

 

          (2)      the date of termination (or proposed termination) of the employment of each such employee. 

 

          As a general rule, the employer must comply with those obligations within the period of 10 days beginning on the day on which the tribunal’s decision is sent to the parties.

 

15.     If DELNI makes payments to employees pursuant to this Decision, it will be doing so because payments of remuneration under a protective award constitute a debt to which Article 227 of ERO applies.  In that context, DELNI will hardly need to be reminded of its power to obtain information, pursuant to Article 235 of ERO, from the employer.

 

16.     In  light of the provisions of Article 235, DELNI may possibly wish to ask the administrator, pursuant to that Article, to provide that Department with a copy of the information which the administrator will in any event be providing (pursuant to Regulation 6 of the Recoupment Regulations) to DSD.

 

 

 

 

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:  7 November 2014, Belfast.

 

 

Date decision recorded in register and issued to the parties:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

THE INDUSTRIAL TRIBUNALS

 

CASE REF:     872/14 and Others

 

 

 

CLAIMANT:                      William McGilligan and Others

 

 

RESPONDENT:                KPL Contracts Ltd (In Administration)

 

 

 

ARTICLE 217 DEFAULT JUDGEMENT

(LIABILITY ONLY)

 

 

1.       This is my decision in respect of the Article 217 complaints in all of the cases which are referred to below.  (In this judgement, those cases are referred to as “the listed cases”).

 

2.       The respondent is in administration.  The administrators have consented to the presentation of the proceedings in each of the listed cases.  The administrators have stated that they do not contest the proceedings in any of the listed cases.

 

3.       In each listed case, I consider it to be appropriate to determine the claimant’s Article 217 complaint (the complaint under Article 217 of the Employment Rights (Northern Ireland) Order 1996) without a hearing.  In each listed case, the relevant determination is as follows:

 

                    The claimant’s Article 217 complaint is well-founded.

 

4.       A remedies hearing, pursuant to this default judgement, will be held in due course.  During the course of that remedies hearing, I will (in respect of each listed case), consider in particular, the following remedies issues:

 

          (1)      Should a protective award be made?

 

          (2)      If so, what should the scope of that award be?  (What description, or descriptions, of employees should be within its scope?)

 

          (3)      How long should the protected period be?

 

The Listed Cases

 

               Name of Claimant                                               Case Ref No

 

1        McGilligan, William                                           872/14IT

2        McDonald, Brian                                              873/14IT

3        Sheppard, Richard                                           874/14IT

CASE REF:     872/14 and Others

 

 

4        Mooney, Paul                                                  875/14IT

5        Neeson, Jonathan                                            876/14IT

6        Temple, Andrew                                              877/14IT

7        Reid, Aidan                                                     878/14IT

8        McGuigan, Kevin                                             879/14IT

9        McCreesh, Don                                               880/14IT

10       Butler, Hugh                                                    883/14IT

11       O'Donnell, Mark                                               884/14IT

12       McBride, Brendan                                            885/14IT

13       Glasgow, Brian                                                886/14IT

14       Glasgow, Terence                                           887/14IT

15       Hunter, Gary                                                   888/14IT

16       McCormick, Jonathan                                      889/14IT

17       McHugh, Joseph                                              890/14IT

18       McDowell, Samuel                                           891/14IT

19       Lynn, Rory                                                      892/14IT

20       McGurk, Michael                                             893/14IT

21       Nutt, David                                                      894/14IT

22       Dempsey, Eileen                                             895/14IT

23       Burke, Michael                                                896/14IT

24       Corr, Brendan                                                 897/14IT

25       O'Hara, Michael                                               898/14IT

26       Convery, Sean                                                 899/14IT

27       Rogers, Ryan                                                  900/14IT

28       Shirlow, Stanley                                               901/14IT

29       McCloskey, Aaron                                           902/14IT

30       McCloskey, Sean                                            903/14IT

31       Lynch, Martin                                        904/14IT

32       Burke, Mary                                                    905/14IT

33       McGowan, Lawrence                                       906/14IT

34       Murphy, Canice                                               907/14IT

35       Lynch, Conor                                                   908/14IT

36       McGuinness, Paul                                            909/14IT

37       Cassidy, Sean                                                 910/14IT

38       Murphy, Kevin                                                 911/14IT

39       O'Kane, Dean                                                  912/14IT

40       O'Kane, Rory                                                            913/14IT

41       Doherty, Mark                                                 914/14IT

42       Logue, Jonathan                                              915/14IT

43       McDowell, Neill                                                916/14IT

44       O'Kane, Caroline                                             917/14IT

45       Leake, Niall                                                     918/14IT

46       Strobehn, Sean                                               919/14IT

47       O'Neill, Lorraine                                               920/14IT

48       McDaid, Anne                                                  921/14IT

49       O'Kane, Roisin                                                922/14IT

50       Hawe, Roisin                                                   923/14IT

51       Rafferty, Colette                                              924/14IT

CASE REF:     872/14 and Others

 

 

52       McBrearty, Noeleen                                         925/14IT

53       McElwee, Bryan                                              926/14IT

54       McLaughlin, Martin                                           927/14IT

55       McCullagh, Anthony                                         928/14IT

56       McMullan, John                                               929/14IT

57       Dunne, Fergal                                                  930/14IT

58       Dunne, Joseph                                                931/14IT

59       McCloskey, Thomas                                        932/14IT

60       McShane, Steven                                            933/14IT

61       McAleese, Dean                                              934/14IT

62       Sherrard, William Nigel John                             935/14IT

63       Lynch, Kevin                                                    936/14IT

64       Lynch, Bried                                                    937/14IT

65       Lynch, Conor                                                   938/14IT

66       Duddy, Brian                                                   939/14IT

67       O'Hara, Sean                                                  940/14IT

 

 

 

 

 

Employment Judge___________________________________

 

 

Date decision entered in register and issued to the parties:

 

 

_____________________________________

For Secretary