Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 555/12

1016/12

 

 

 

CLAIMANTS: 1. Valerie Lyttle

2. Clara Lyttle

 

 

RESPONDENT: Bluebird UK Bidco 2 Ltd

 

 

 

FINAL DECISION

 

 

In each of these two cases, our decisions are as follows:

 

(A) The claimant's claim under Article 217 of the Employment Rights (Northern Ireland) Order 1996 ("ERO") is not well-founded. Accordingly, that claim is dismissed.

 

(B) The claimant's unfair dismissal claim is not well-founded. Accordingly, that claim is also dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Buggy

 

Members: Mrs E Gilmartin

Mr D Walls

 

 

Appearances:

 

The claimants were represented by Mr Philip Kilpatrick.

 

The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by DLA Piper UK LLP.

 

 

REASONS

 

1.             Nineteen of the Northern Ireland Bon Marche employees who were made redundant during the Spring of 2012 have brought cases in the Northern Ireland industrial tribunals. All 19 of them are represented in those cases by
Mr Philip Kilpatrick.

 

2.             Four of those cases were "lead" cases. Those lead cases consisted of these two cases, Sarah Halliday's case and Tanya McGerty's case.

 

3.             When those lead cases were chosen, it was agreed between the parties that, although the outcomes of the lead cases would not necessarily be determinative of the outcomes of all of the other 15 cases, the expectation was that the outcomes of the lead cases would be seen by all relevant parties as being a powerful indicator of the likely outcomes of the 15 other cases.

 

4.             In each of those four lead cases, we decided to refer questions, regarding the interpretation of EU Directive 98/59/EC, to the Court of Justice of the European Union ("CJEU"), pursuant to Article 267 of the Treaty on the Functioning of the European Union. The CJEU has provided its answers to those questions, in a judgment which was delivered earlier this year.

 

5.             In light of the answers to those questions, the main hearing of the four lead cases was scheduled to take place on 24 September 2015.

 

6.             Sarah Halliday and Tanya McGerty were not available to attend the hearing on 24 September. Accordingly, on behalf of the claimants and on behalf of the respondent, it was agreed that, from 24 September 2015 onwards, these two cases would be deemed to be the only lead cases.

 

7.             During the course of this September 2015 hearing, in light of the answers which had been provided by the CJEU to the questions which were referred to it,
Mr Kilpatrick presented no further evidence, and no further arguments, in respect of the collective consultation claim (the claim under Article 217 of ERO). That was a realistic approach on his part.

 

8.             In each of these two cases, we are satisfied that the relevant claimant was assigned to an establishment which consisted of fewer than 20 redundant employees; therefore, we are satisfied that the Article 216 and Article 216A duties did not apply in the context of that claimant's redundancy.

 

9.             In each of these two cases, at the end of the hearing, we announced our decision in respect of both the Article 217 claim and the unfair dismissal. At the same time, we provided detailed oral reasons in respect of our decision to dismiss the unfair dismissal claim.

 

10.          A copy of this decision will be provided to each of the 19 claimants who were referred to above.

 

11.          In each of the other 17 cases (consisting of the cases of all of the 19 claimants referred to above, with the exception of these two claimants), the Office of the Industrial Tribunals will write to the relevant claimant's representative, in four weeks time, asking whether, at that point, the relevant claimant wishes to withdraw both of her claims in these proceedings.

 

12.          Those claimants who were not present during this hearing should be aware of the following. In each of these two lead cases, in presenting the unfair dismissal claim, Mr Kilpatrick very competently cross-examined the respondent's witness
(Ms Alison McMillan) in detail, and made every relevant argument which could properly be made on that claimant's behalf.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 24 September 2015, Belfast.

 

 

Date decision recorded in register and issued to parties: