Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  253/15

 

 

 

CLAIMANT:                          Jacek Prochownik

 

 

RESPONDENT:                  IRS Recycling Services Ltd (In Liquidation)

 

 

DECISION

(A)       The claimant’s complaint under Article 217 of the Employment Rights Order 1996 (“ERO”) is well-founded.

 

(B)       We have decided to make a protective award. 

 

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

 

(D)      The protected period began on 22 December 2014 and lasted for seven days.

 

(E)       This protective award applies to all of the persons specified or referred to at paragraph 56 below.

 

The attention of the parties is drawn to the Recoupment Statement at the end of this Decision.

 

The address of the respondent is: c/o 22 Lower Windsor Avenue, Belfast,
BT9 7DW.

 

 

 

Constitution of Tribunal:

 

Employment Judge:          Employment Judge Buggy

           

Members:                             Mr J Boyd

                                                Mr I Foster

 

 

Appearances:

 

The claimant was self-represented.

 

The respondent was represented by Ms N Leonard, Barrister-at-Law.

REASONS

1.         The claimant worked for the respondent company (“the Company”) from 15 May 2012 until 22 December 2014.  With effect from the latter date, he was dismissed.  On the same date, all of the other employees of the Company were also dismissed.  Those other dismissals also took immediate effect.

 

Some key legislative provisions

 

2.         In the event of redundancies being contemplated, Article 216 of ERO imposes a duty upon an employer, in some situations, to collectively consult with representatives of all or part of its workforce.  Article 216A of that Order imposes requirements in relation to the election of such representatives.  Article 217 of ERO provides for the making of a complaint to a tribunal in respect of an alleged failure to comply with Article 216 and/or with Article 216A.

 

3.         Articles 216, 216A and 217 of ERO have to be read in conjunction with Articles 218-226 of that Order.  Articles 216-226 are to be found in Part XIII of ERO, which is entitled “Procedure for handling redundancies”.

 

4.         Articles 216, 216A and 217, as amended, implement, in respect of Northern Ireland, the obligations which are imposed upon the United Kingdom by EU Directive 98/59 EC (“the 1998 Directive”).

 

5.         Article 216 of ERO provides as follows:

 

“216.—(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;

 

(2)       The consultation shall begin in good time and in any event—

 

(a)     where the employer is proposing to dismiss 100 or more employees as mentioned in paragraph (1), at least 90 days, and

 

(b)     otherwise, at least 30 days, before the first of the dismissals takes effect.

 

(3)       For the purposes of this Article the appropriate representatives of any affected employees are—

 

(a)     if the employees are of a description in respect of which an independent trade union is recognised by their employer, representatives of the trade union, or

 

(b)     in any other case, whichever of the following employee representatives the employer chooses—

 

(i)        employee representatives appointed or elected by the affected employees otherwise than for the purposes of this Article, who (having regard to the purposes for and the method by which they were appointed or elected) have authority from those employees to receive information and to be consulted about the proposed dismissals on their behalf;

 

(ii)     employee representatives elected by the affected employees, for the purposes of this Article, in an election satisfying the requirements of Article 216A(1).

 

(4)       The consultation shall include consultation about ways of—

 

(a)     avoiding the dismissals,

 

(b)     reducing the numbers of employees to be dismissed, and

 

(c)     mitigating the consequences of the dismissals,

 

and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives.

 

(5)       In determining how many employees an employer is proposing to dismiss as redundant no account shall be taken of employees in respect of whose proposed dismissals consultation has already begun.

 

(6)       For the purposes of the consultation the employer shall disclose in writing to the appropriate representatives—

 

(a)     the reasons for his proposals,

 

(b)     the numbers and descriptions of employees whom it is proposed to dismiss as redundant,

 

(c)     the total number of employees of any such description employed by the employer at the establishment in question,

 

(d)     the proposed method of selecting the employees who may be dismissed,

 

(e)     the proposed method of carrying out the dismissals, with due regard to any agreed procedure, including the period over which the dismissals are to take effect,

 

(f)      the proposed method of calculating the amount of any redundancy payments to be made (otherwise than in compliance with an obligation imposed by or by virtue of any statutory provision) to employees who may be dismissed.

 

(g)     the number of agency workers working temporarily for and under the supervision and direction of the employer,

 

(h)     the parts of the employer's undertaking in which those agency workers are working, and

 

(i)      the type of work those agency workers are carrying out.

 

(7)       That information shall be given to each of the appropriate representatives by being delivered to them, or sent by post to an address notified by them to the employer, or (in the case of representatives of a trade union) sent by post to the union at the address of its head or main office.

 

(8)       The employer shall allow the appropriate representatives access to the affected employees and shall afford to those representatives such accommodation and other facilities as may be appropriate.

 

(9)        If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of paragraph (2), (4) or (6), the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances.

 

(10)     Where the decision leading to the proposed dismissals is that of a person controlling the employer (directly or indirectly), a failure on the part of that person to provide information to the employer shall not constitute special circumstances rendering it not reasonably practicable for the employer to comply with any of those requirements.

 

(11)     Where—

 

(a)       the employer has invited any of the affected employees to elect employees representatives, and

 

(b)       the invitation was issued long enough before the time when the consultation is required by paragraph (2)(a) or (b) to begin to allow them to elect representatives by that time,

 

the employer shall be treated as complying with the requirements of this Article in relation to those employees if he complies with those requirements as soon as is reasonably practicable after the election of the representatives.

 

(11A)  If, after the employer has invited affected employees to elect representatives, the affected employees have failed to do so within a reasonable time, he shall give to each affected employee the information set out in paragraph (6).

 

(12)     This Article does not confer any rights on a trade union, a representative or an employee except as provided by Articles 217 to 220.

 

(13)     In this Article “"agency worker”” has the same meaning as in regulation 3 of the Agency Workers Regulations (Northern Ireland) 2011.”

 

6.         Article 217 of ERO provides as follows:

 

“217.—(1)         Where an employer has failed to comply with a requirement of Article 216 or Article 216A, a complaint may be presented to an industrial tribunal on that ground—

 

(a)       in the case of a failure relating to the election of employee representatives, by any of the affected employees or by any of the employees who have been dismissed as redundant,

 

(b)     in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related,

 

(c)     in the case of failure relating to representatives of a trade union, by the trade union, and

 

(d)     in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant.

 

(1A)    If on a complaint under paragraph (1) a question arises as to whether or not any employee representative was an appropriate representative for the purposes of Article 216, it shall be for the employer to show that the employee representative had the authority to represent the affected employees.

 

(1B)    On a complaint under paragraph (1)(a) it shall be for the employer to show that the requirements in Article 216A have been satisfied.

 

(2)       If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award.

 

(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, ordering the employer to pay remuneration for the

          protected period.

 

(4)       The protected period—

 

(a)     begins with 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, and

(b)     is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer's default in complying with any requirement of Article 216;

 

                                 but shall not exceed 90 days  . . .

 

(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)     during the period of three months beginning with that date, or

 

(c)     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.

 

(6)       If on a complaint under this Article a question arises—

 

         (a)     whether there were special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of Article 216, or

 

         (b)     whether he took all such steps towards compliance with that requirement as were reasonably practicable in those circumstances,

 

         it is for the employer to show that there were and that he did.”

 

The evidence

 

7.         The parties provided the tribunal with some miscellaneous documents.  We received oral testimony on behalf of the claimant from Mr Robert McCormick (an ex-colleague of the claimant, who was dismissed by the Company, by reason of redundancy, on the same date as the claimant was dismissed).

 

8.         The following appeared as witnesses on behalf of the respondent:

 

            (1)       Ms Rosemary Fitzsimmons (a daughter of the controlling shareholder of the Company),

 

            (2)        Mr Edward Hanna and

 

            (3)       Mr James Kennedy (an insolvency practitioner who is the liquidator of the Company).

 

The facts

 

9.         In the following sub-paragraphs, we set out findings of fact which are relevant to the issues which we have determined in these proceedings.

 

(1)          As its name suggest, the Company is a waste management company. 

 

(2)          For many years, the Company carried on that business.

 

(3)          The Company ceased operations, with immediate effect, on 22 December 2014. 

 

(4)          When the Company was in operation, it operated from two different outlets.  One of those outlets was at Duncrue Street in Belfast and the other was more than 15 miles away, in Groomsport. 

 

(5)          For several years the Company was plagued by vandalism. 

 

(6)          As a result, those in charge of the Company came to the conclusion that it would have to cease to operate the relevant business.  

 

(7)          Accordingly, the Company negotiated with a third party, on the basis that the third party would become the transferee of the Company’s business, pursuant to a transfer of undertaking. 

 

(8)          Those negotiations appeared to be going well.  They were due to be completed the week before Christmas 2014. 

 

(9)          Unfortunately, at that point, it became clear, for the first time, that the landlord of one of the outlets was unwilling to agree, or at least was unwilling at that point to commit himself to agreeing, to the assignment, to the contemplated transferee, of the lease relating to one of the outlets.    

 

(10)       In that situation, on the basis of all of the advice and information available to it, the Company decided that it could not properly continue to trade, because it was illiquid. 

 

(11)       Accordingly, on 22 December 2014, the Company informed all its employees, including this claimant and Mr Robert McCormick, that they were being dismissed with immediate effect, because of the closure of the business. 

 

(12)       The Company has at all material times accepted that this claimant and Mr McCormick were both “assigned” to the Duncrue Street outlet (in the sense in which the term “assigned” is used in the context of collective consultation law). 

 

10.      For ease of reference, and in order to minimise avoidable duplication, we have also set out some additional findings of fact elsewhere in this Decision.

 

The issues

 

11.      We have identified the following issues as being relevant in the context of this Decision:

 

            (1)       In the circumstances of the relevant dismissals which were being contemplated in December 2014, were the duties imposed by Article 216 and/or 216A operative at all?

 

            (2)       If Article 216 applied, was it complied with?

 

            (3)       Were there special circumstances which rendered it not reasonably practicable for the Company to comply with any requirement of Article 216?  (See paragraph (6) of Article 217).

 

            (4)       If the Article 216 duties were owed, and there were special circumstances within the meaning of Article 217(6) of ERO, did the Company take all such steps towards compliance (with the relevant duties) as were reasonably practicable in those circumstances?

 

            (5)       If the Article 217 complaint is well-founded, should we make a protective award?

 

            (6)       In the context of any protective award, when should the protected period begin?

 

            (7)       What should be the duration of the protected period?

 

            (8)       Who should be within the scope of the award?

 

Were the Article 216 and Article 216A duties owed at all?

 

12.      All of the Company’s staff were dismissed in December 2014.  Accordingly, as Ms Leonard realistically accepted, in the context of the December 2014 dismissals, the Article 216 and Article 216A duties were owed, in respect of any particular establishment within the undertaking of the Company, if there were at least 20 staff within that establishment. 

 

13.      More than 20 staff were employed by the Company in December 2014.  We are sure that the entire undertaking of the respondent did not comprise a single establishment.  Instead, we are sure that the relevant undertaking comprised of two establishments: the Duncrue Street establishment and the Groomsport establishment.

 

14.      As the Court of Justice of the European Union pointed out at paragraphs 28-30 of its judgment in Lyttle v Bluebird UK Bidco 2, Case C-182/13:

 

            (1)       An employment relationship is essentially categorised by the link existing between the worker and the part of the undertaking or business to which he is assigned to carry out his duties.  Accordingly, in the context of the 1998 Directive, the term “establishment” must be interpreted as designating, depending on the circumstances, the unit to which the workers made redundant are assigned to carry out their duties.

 

            (2)       It is not essential, in order for there to be an establishment, that the unit in question is endowed with a management that can independently effect collective redundancies.

 

            (3)       For the purposes of the relevant Directive, an “establishment”, in the context of an undertaking, may consist of a distinct entity, having a certain degree of permanence and stability, which is assigned to perform one or more given tasks and which has a workforce, technical means and a certain organisational structure allowing for accomplishment of those tasks.

 

            (4)       However, the entity in question need not have any legal autonomy, and it does not need to have economic, financial, administrative or technological autonomy, in order to be regarded as “an establishment”.

 

            (5)       Consequently, and according to the case law of the European Court, where “an undertaking” includes several establishments, it is the entity to which the workers made redundant are assigned to carry out their duties that constitutes the relevant “establishment” for the purposes of the 1998 Directive.

 

15.      In our view, it is clear that, for the purposes of the provisions of Articles 216, 216A and 217 of ERO, the definition of the term “establishment” is the same as the definition of that term for the purposes of the 1998 Directive. 

 

16.      On 22 December 2014, the Company operated two sites, one at Duncrue Street in Belfast, and the other at Groomsport, County Down.  At that time, the Company’s overall staffing consisted of 30 employees.  Against that background:

 

(1)       The Company contends that its entire undertaking consisted of two, and only two, establishments: the Duncrue Street establishment and the Groomsport establishment.

 

(2)       The claimant contends that the Company’s undertaking consisted of a single establishment; or, alternatively, that at least 20 staff belonged to the Duncrue Street establishment.

 

(3)       The Company accepts that, at the relevant time, all its employees, other than the employees specified or referred to in the next paragraph below, were based at Duncrue Street.  Accordingly, the Company accepts that at least 18 employees were assigned to Duncrue Street.

 

(4)       The claimant accepts that, if the Groomsport base constituted a separate establishment, less than 20 staff were assigned to that establishment.

 

17.      According to the respondent, the following employers were assigned to Groomsport, and were not assigned to Duncrue Street: 

 

            (1)        The administrative staff (3 of them).

 

            (2)        Three fitters/mechanics (Nigel Mullan, David McAvoy and Rob Dodds).

 

            (3)        The fitter/yard operative (David Montgomery).

 

            (4)        The Chain Skips driver/foreman (Stephen Morrow).

 

            (5)        The Roll-on/Roll-off Skips driver/foreman (Tony Cooper).

 

            (6)        Three lorry drivers (Norman Houston, Michael Mortimer and Paul Martin).

 

18.      Having carefully assessed the oral and documentary evidence available to us, we have arrived at the following conclusions in relation to the staff referred to in the last preceding paragraph above.    

 

19.      We note that nearly all the relevant employees had contracts of employment which specified that they were required to work both in Belfast and in Groomsport. 

 

20.      None of the administrative staff was assigned to Duncrue Street.  Instead, all of them must be regarded as having been assigned to Groomsport, at the relevant time.

 

21.      The fitters/mechanics have to be regarded as being assigned to Groomsport, because it was common case that they spent no more than approximately a third of their time at Duncrue Street, and they spent most of their time working at Groomsport.

 

22.      It is clear that the fitter/yard operative was assigned to Groomsport, because he never worked at Duncrue Street and he worked mainly at Groomsport.

 

23.      We are satisfied that each of the two drivers/foremen named at paragraph 17 above was assigned to Duncrue Street.  In each of those two instances, we have arrived at that conclusion against the following background, and for the following reasons.

 

24.      We have taken account of the fact that each man had a contract of employment which specified that he had two alternative bases (Duncrue Street and Groomsport).

            We note that each of them parked his lorry at Groomsport at night, and collected it there in the morning.  However, in each instance, we are satisfied that the relevant foreman spent approximately 50% of his time working at Duncrue Street, and that he only worked at Groomsport for approximately 10% of the time. 

 

25.      We consider that Mr Houston, Mr Mortimer and Mr Martin, the lorry drivers specified at paragraph 17 above, were all assigned to Duncrue Street.  In each instance, we have arrived at that conclusion, having borne very much in mind that each man parked his lorry at Groomsport at night, and that he embarked upon his day’s work from Groomsport each morning.  However:

 

(1)          According to the evidence of Mr McCormick, which we accept, each of those three lorry drivers spent about a third of their time working at Duncrue Street.

 

(2)          Both parties agreed that each of those three lorry drivers only spent approximately 5% of his working time working at Groomsport.

 

26.      When the parties were asked to provide approximate percentages in relation to working time spent, by the relevant members of staff (Messrs Houston, Mortimer and Martin), at Duncrue Street and at Groomsport respectively:

 

(1)          Mr McCormick’s initial and final estimate was that each relevant lorry driver spent 35% of his time at Duncrue Street. 

 

(2)          Ms Fitzsimmons’ initial estimate was that they spent approximately 25% of their working time there.

 

(3)          It was only after a recess in the hearing that Ms Fitzsimmons told us that, upon reflection, she now believed that each relevant lorry driver only spent approximately 8% of his time working at Duncrue Street.

 

27.      We think that Ms Fitzsimmons’ initial estimate (which is not unlike the initial and final estimate of Mr McCormick) was closer to the true situation than her second estimate was.  (On this matter, we found Mr McCormick to be a much more convincing witness that Ms Fitzsimmons). 

 

28.      The Company accepts that all of the following 18 staff, who worked most of the time at Duncrue Street, were assigned to Duncrue Street:

 

            (1)        Pickers/yard operatives (11 of them).

 

            (2)        Drivers (3 of them).

 

            (3)        Picker-supervisors (2 of them).

 

            (4)        A mechanic/yard operative.

 

            (5)        A digger driver.

 

29.      The overall implication of the foregoing is as follows.  The 18 staff referred to at paragraph 28 were assigned to the Duncrue Street establishment; so were the two foremen referred to at paragraph 17 above; and so were the three lorry drivers referred to at 17 above. 

 

30.      Accordingly:

 

(1)          We are satisfied that the Duncrue Street establishment included those 23 employees and

 

(2)          we are not satisfied none of the other employees of the Company was assigned to Duncrue Street.

 

31.      Therefore, on 22 December 2014, when the Company was proposing to dismiss all its employees, the Article 216 and Article 216A duties were triggered, but only in respect of the contemplated redundancies of the Duncrue Street staff.

 

Did the Company comply with the Article 216 and/or Article 216A duties?

 

32.      The short answer to the question posed under this heading is “no”, for two main reasons. 

 

33.      First, although no “appropriate representatives” (within the meaning of Article 216) were available for consultation, the Company never made any arrangements, of the type which are contemplated in Article 216A, to remedy that deficiency. 

 

34.      Secondly, on 22 December 2014, none of the Company’s communication-interactions with its employees was of a consultative nature.  (During the course of those communications, the Company was merely informing the relevant employees of what the Company had already, irrevocably, decided to do). 

 

35.      In particular, on 22 December, the Company’s discussions with staff did not include, as part of the subject-matter, ways of avoiding the dismissals, or of reducing the number of employees to be dismissed, or of mitigating the consequences of the dismissals. 

 

Impracticable?

 

36.      The implication of paragraph (9) of Article 216 is that, even if the Article 216 duties, or some of them, are not discharged, there will not be an actionable failure to comply (within the meaning of Article 217) if there were “special circumstances” which rendered it not reasonably practicable for the employer to comply with one or more of the relevant requirements. 

 

37.      There is clear case law, as Ms Leonard accepts, that impecuniosity, or even formal insolvency, does not, in itself, meet the threshold of impracticability within the context of paragraph (9) of Article 216. 

 

38.      However, we have arrived at the following factual conclusions.  The Company became illiquid, at very short notice, during the weekend which preceded 22 December 2014.  That was mainly the result of a last-minute decision, on the part of a landlord, not to agree, or not to immediately agree, to a proposed lease assignment (to a person who would have become the transferee of the Company’s undertaking).  Because of that combination of events, it was appropriate, necessary and proportionate for the Company to cease operations at short notice. 

 

39.      We are satisfied that, because of the combination of circumstances which have been specified in the last preceding paragraph, there were special circumstances, within the meaning of paragraph (9) of Article 217, which rendered it not reasonably practicable for the Company to comply with all the requirements of Article 216. 

 

Did they do enough?

 

40.      Paragraph (9) of Article 216 provides as follows:

 

            “(9)      If in any case there are special circumstances which rendered it not reasonably practicable for the employer to comply with a requirement of paragraph (2), (4) or (6), the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances”.

 

41.      The implication of the “all such steps” aspect of paragraph (9) is that, even if it is not reasonably practicable for an employer to comply with one, or more, or all, of the relevant 216 requirements, the employer will still be in breach of the Article 216 duties unless it takes “... all such steps towards compliance ... as are reasonably practicable in those circumstances”. 

 

42.      In the circumstances in which the Company found itself on 22 December 2014, did it take “all such steps”?  The short answer to the latter question is “no”, because it took no relevant “steps”. 

 

43.      The Company had a relatively small workforce.  During the course of the morning of 22 December, it would have been open to the Company to ask its workers to elect one or more representatives to act on their behalf in connection with a truncated collective consultation, of the type which is contemplated by Article 216; any such truncated consultation could have been both started and completed on 22 December.  But nothing, in that regard, was done. 

 

44.      Accordingly, we are satisfied that the Company breached the requirements of Article 217.  Therefore, this Article 217 complaint is well-founded.

 

Should we make a protective award?

 

45.      Paragraph (2) of Article 217 provides that, if a tribunal finds that an Article 217 complaint is well-founded, it “... may ... make a protective award”. 

 

46.      In most circumstances, if there has been non-compliance with a requirement of Article 216 (other than a technical or peripheral requirement), it is, for practical purposes, inevitable that a tribunal will exercise the relevant discretion in favour of making a protective award.  (In this general connection, see paragraph 63 of the judgment of the Court of Appeal in Haine v Day [2008] IRLR 642). 

 

47.      In this case, the relevant non-compliances were not merely technical or peripheral.  We consider it to be appropriate to make a protective award.

 

The commencement date

 

48.      Paragraph (4) of Article 217 provides that, in respect of any protective award, the protected period is to begin:

 

                        “... with 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”.

 

49.      Accordingly, in the circumstances of this case, the date of commencement of the protective award is 22 December 2014. 

 

The duration of the protective award

 

50.      We have decided that it is appropriate to make a protective award of only seven days’ duration in this case.  In arriving at that determination, we have had regard to the guidance which was set out in the judgment of Gibson LJ in Susie Radin v GMB [2004] ICR 893 (a case to which our attention was drawn by Ms Leonard).  At paragraph 45 of his judgment, Gibson LJ made the following observations, in relation to the legislation in Great Britain which corresponds to Article 216 of ERO:

 

“I suggest that ETs, in deciding in the exercise of their discretion whether to make a protective award and for what period, should have the following matters in mind:

(1)     The purpose of the award is to provide a sanction for breach by the employer of the obligations in s.188 [the Great Britain equivalent of Article 216 of ERO]: it is not to compensate the employees for loss which they have suffered in consequence of the breach.

 

(2)     The ET have a wide discretion to do what is just and equitable in all the circumstances, but the focus should be on the seriousness of the employer's default.

 

(3)     The default may vary in seriousness from the technical to a complete failure to provide any of the required information and to consult.

 

(4)     The deliberateness of the failure may be relevant, as may the availability to the employer of legal advice about his obligations under s.188.

 

(5)     How the ET assesses the length of the protected period is a matter for the ET, but a proper approach in a case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the ET consider appropriate.”

 

51.      In deciding to make a protective award of only a week’s duration, we have had regard, in particular, to the following.  The default consisted of a complete failure to carry out any aspect of the collective consultation duty.  The Company was taken by surprise as a result of the landlord’s last-minute decision not to grant consent for assignment.  There was a very limited timescale within which any collective consultation could have been carried out.  The Company had already engaged in respectful and detailed discussions with the workforce in respect of the proposed transfer of an undertaking which the Company had been contemplating. 

 

The scope of the award

 

52.      Paragraph (3) of Article 217 identifies the potential scope of a protective award, in the following terms:

 

“(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”.

 

53.      We consider that, in relation to any particular situation in which the Article 216 duties are triggered, Article 217 is designed to facilitate a once-and-for-all adjudication and, as a consequence of that adjudication:

 

(1)          a singular and comprehensive declaration and

 

(2)          a singular and comprehensive protective award (if any protective award is to be made).    

 

54.      We consider that, in the circumstances of the Company’s December 2014 redundancies, it is in everybody’s interests (including the Company’s interests) for us to make a one-off and comprehensive protective award in respect of all the redundant workers who belonged to the Duncrue establishment.

 

55.      In this case, we have decided to make a protective award in respect of all of the employees who were referred to at paragraph 29 above.  Those staff are identified in the next paragraph below. 

 

56.      The protective award applies to all of the following employees:

 

(1)          the claimant, Mr Robert McCormick and all the other staff who, according to the Company, were based at Duncrue Street.  (See paragraph 28 above),

 

(2)          Mr Stephen Morrow and Mr Tony Cooper,

 

(3)          Mr Norman Houston, Mr Michael Mortimer and Mr Paul Martin.

 

 

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:  29 May and 21 August 2015, Belfast.

 

 

Date decision recorded in register and issued to parties: