Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1718/16

 

 

 

CLAIMANT: UNITE

 

 

RESPONDENT: Antrim Contract Carpets Ltd (In Liquidation)

 

 

 

DECISION

The decision of the tribunal is that:-

 

(A) The claimant's complaint, under Article 217 of the Employment Rights (Northern Ireland) Order 1996 ("ERO"), is well-founded.

 

(B) I have decided to make a protective award in respect of the descriptions of employees who are specified at paragraph 67 below.

 

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

 

(D) The protected period began on 22 June 2016 and lasted for 60 days.

 

 

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

 

The address of the respondent is:

 

C/o McKeaguemorgan

Insolvency Practitioners

27 College Gardens

BELFAST

BT9 6BS

 

Constitution of Tribunal:

Employment Judge (sitting alone): Employment Judge Buggy

 

 

Appearances:

The claimant was represented by Mr J O'Neill, Solicitor, of Thompsons NI, Solicitors.

The respondent was debarred from participating in these proceedings, because no response had been presented on behalf of the respondent.

 

REASONS

 

1. I refer to the Decision of a full tribunal in Dempsey & Others v David Patton & Sons (NI) Ltd (In Administration) [Case Reference No: 947/13 & 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.

 

The collective consultation legislation

 

2. Article 216 of the Employment Rights (Northern Ireland) Order ("ERO") imposes a duty upon an employer, in some situations, to collectively consult with certain workforce representatives.

 

3. Article 217 provides for the making of a complaint to a tribunal in respect of a failure to comply with Article 216.

 

The context

 

4. The trade union Unite ("Unite") is the claimant in these proceedings.

 

5. The respondent Company ("the Company") operated a factory ("the Factory") at Kennedy Way Industrial Estate in Belfast, for many years, until the first half of 2016. According to Unite, the culmination of a process which had lasted for less than three months was that, in June 2016, more than 20 of the Factory staff were made redundant. Unite contends that, in breach of Article 216 of ERO, no relevant collective consultation with Unite, of the type which is envisaged in Article 216 of ERO, took place.

 

6. For collective bargaining purposes, Unite was recognised in respect of some of the categories of employees within the Factory.

7. In these proceedings, Unite seeks a declaration that the Company failed to comply with requirements of Article 216. Unite has also asked me to make a protective award, as a remedy in respect of that alleged failure.

 

The course of the proceedings

 

8. No response was presented by the Company.

 

9. The main hearing in this case took place on 23 November 2016. At that hearing, Unite was represented. Because the Company had not presented a response, it was debarred from participating in that hearing.

 

10. The Department for the Economy ("the Department") has a financial interest in the outcome of this case. That is because of the responsibility of the Redundancy Payments Service ("the RPS") in respect of the payment of up to eight weeks of wages in respect of any protective award which I might make.

 

11. The Department did not participate in the main hearing. However, prior to the main hearing, the RPS made written representations in this case ("the Representations"). Those Representations focused on the threshold issue. (See paragraph 33 below).

 

12. As a result of a communications mishap, the Representations did not come to my attention, or to the attention of Unite, until after the conclusion of the main hearing. However, the Representations were the subject of detailed consideration during the course of a Case Management Discussion ("CMD") which was held on
10 January 2017. At that CMD, Mr George Kilpatrick, Solicitor represented Unite and Ms Harriet Ferguson represented the RPS. During the course of that CMD, certain factual and legal issues, which had been raised in the course of the Department's Representations, were given detailed consideration by all of the participants.

 

13. At the end of that CMD, Ms Ferguson told me that the Department now no longer wished to pursue the issues which had been raised during the course of the Representations, because the concerns which had been at the heart of the Representation had now been allayed. It is clear that those concerns had been allayed only because of the lengthy and detailed discussion which had taken place during the CMD (as a result of which the issues which had been at the heart of the Representations had been clarified).

 

14. In arriving at my ultimate conclusions in this case, I have taken full account of the factual and legal issues which had been highlighted in the Representations.

 

The evidence

 

15. During the course of the main hearing, my attention was drawn to a number of documents, most of which were contained in a bundle of documents.

 

16. Along with the Representations, the Department included a statement which had been provided by Mr Kamiar Shafai, to the RPS, during the course of his personal application to the RPS for a redundancy payment. In this Decision, that statement is referred to as "the KS Statement". In arriving at my factual conclusions in this case, I have taken account of the contents of the KS Statement.

 

17. During the course of the hearing, I received oral testimony from Mr Sean Smyth, a Unite official, and from Mr Jonathan McFeeters, a Unite shop steward who, until his dismissal in June 2016, had worked on a full-time basis within the Factory.




The facts

 

18. I made the findings of fact which are set out at paragraphs 19-29 below. For ease of reference, and in order to minimise repetition, I have also set out some other findings of fact elsewhere in this Decision.

 

19. The Company ceased to trade at the end of April 2016.

 

20. In a memorandum dated 20 April 2016, the Company told all the Factory's production operatives that "due to a cash flow situation" they were to be temporarily laid off, that it was envisaged that that lay-off could last for a four week period from 25 April 2016 until 20 May 2016, and that guarantee payments would be paid.

 

21. In a further similar memo dated 16 May 2016, the same operatives were advised that the temporary layoff period was to continue for up to a further four weeks until 17 June 2016.

 

22. During the week commencing 6 June 2016, at least some of the employees were advised by a text message from Danny Heaver, a senior manager in the Company, to attend at the office of James Kennedy & Co., the Company's accountants, on Tuesday 14 June "to complete redundancy documentation".

 

23. The Company went into voluntary liquidation on 22 June 2016.

 

24. For collective bargaining purposes, Unite was recognised by the Company, in respect of the Factory's manual workers, weavers, engineers and menders.

 

25. The liquidation was agreed upon during the course of a meeting of creditors which took place on 22 June 2016. During that meeting, the creditors received a report from Mr Kamiar Shafai. On the basis of that report, and on the basis of the KS Statement. I am satisfied, on the balance of probabilities, that:

 

(1) The Company was formed in 1989 by Kamiar Shafai and his brother Shariar Shafai. The trading activities of the Company mainly or solely involved the design and manufacture of bespoke carpets of a particular brand. The Company traded from rented premises at Kennedy Way Industrial Estate in Belfast.

 

(2) The Company traded profitably for many years, benefiting from the Celtic Tiger and a strong demand for carpets in the Republic of Ireland.

 

(3) The downturn in the economy in 2008 severely impacted on the construction and hospitality sectors and resulted in large unpaid debts which were owed to the Company. The Company's turnover declined by 50% during the recession years. However, trading continued.

 

(4) The Factory rent and service charges, which had historically been in the region of £90,000 per annum, were no longer sustainable and a backlog of unpaid rent accrued from 2014 onwards. During the two years immediately preceding the liquidation, the directors (Mr Kamiar Shafai and his brother Shariar Shafai) had several meetings with the Factory's landlord, seeking to make an arrangement in respect of the arrears.

 

(5) The demand for carpets had increased since May 2015. By October 2015, the Company had orders in excess of £600,000 on hand. On the basis of that improving order book, a loan of £250,000 was approved by a particular potential investor ("X"). The funds were released to the Company's solicitors subject to a "satisfactory" lease being put in place and subject also to the backlog of rent being postponed for five years. However, no agreement to that effect could be reached with the landlord.

 

(6) In April 2016, another potential investor ("Y") approached Mr Kamiar Shafai with a view to investing in the Company, again subject to a "satisfactory" lease being put in place. Again, no agreement with the landlord was arrived at.

 

(7) The Company ceased trading in April 2016 as a result of the ongoing uncertainty in relation to the premises.

 

(8) In May 2016, the landlord repossessed the property, changed the locks and refused to allow the Company any further access to the property.

 

(9) At that point, McKeague Morgan and Company were consulted, in their capacity as insolvency practitioners, for the purpose of calling a creditor's meeting to appoint a liquidator.

 

26. During the course of the meeting of Company creditors on 22 June 2016, the Company's accountant, Mr James Kennedy, made comments to the following effect:

 

"J B Kennedy stated that the 20 or so employees of this Company had been out of a job since the end of April without any redundancy and it would be totally unfair to delay proceedings any further as their claims could only be processed when a liquidator had been appointed".

 

27. The KS Statement states the following:

 

"The protracted negotiations continued throughout and in April 2016 we were obliged to put the workforce on protective notice as we had been advised to defer work on new orders due to uncertainty and the fact that the lead time on processing an order from receipt to delivery is up to three months. At the end of that period as no positive feedback had been received from the landlord on professional advice we decided to convene a meeting of creditors to appoint a Liquidator."

 

On the basis of the sworn oral testimony which I received, and on the basis of other documents which had been shown to me in this case, it is clear to me that that quoted extract from the KS Statement contains a factual inaccuracy, which is as follows. Contrary to what is stated in the quoted extract, no workers were put on protective notice in April 2016. Instead, the workers were laid off.

 

28. In the Representations, the Department had drawn attention to the fact that, in the notification to the Department which the liquidator sent on 24 June 2016, the liquidator had stated, at paragraph 16 of the relevant form, that 16 people were employed by the Company on the date it became insolvent. (I note that 16 "employees" made an application to the RPS in respect of redundancy payments). I also note that, in a letter which was written less than a month later, the liquidator personally confirmed the following, to the claimant's solicitor, Mr O'Neill:

 

"I can confirm that there were 28 employees (including 2 directors) on the payroll at the end of March 2016 and [I] enclose a copy of the Payment summary record taken from Sage payroll. As you are aware 16 of those employees (including 2 directors) made claims [to the RPS] and I enclose a list of those 12 employees who did not submit claims".

 

29. I am satisfied as to the following:

 

(1) By the end of April 2016, the Company was expecting that, within a period of 90 days or less, it would probably have to dismiss all of the Factory's employees.

 

(2) At the end of April 2016, the Company still had more than 20 employees.

 

(3) On 22 June 2016, more than 20 employees, based in the Factory, were dismissed, as redundant, by the Company.

 

I have arrived at the conclusions set out in those three sub-paragraphs on the basis of the findings of fact set out above, in light of the uncontroverted sworn oral testimonies of Mr Smyth and of Mr McFeeters, in light of the content of the KS Statement, having carefully considered the documentation which was enclosed with the Representations, and having carefully considered the documents in the Bundle to which my attention was drawn,

 

Liability

 

30. At paragraphs 31-52 below, I focus on matters which are relevant in the context of determining whether this complaint is well-founded.

 

The issues (General)




31. The relevant dismissals took place on 22 June 2016. These proceedings were presented on 25 July 2016. Accordingly, these proceedings have been brought within the primary time limit.

 

32. The complaint in these proceedings is a complaint in respect of a failure relating to Unite, in Unite's capacity as an independent trade union which was recognised by the Company. Accordingly, I am satisfied that Unite has the "standing" to make the complaint in these proceedings. (In this context, see sub-paragraph (c) of paragraph (1) of Article 217; and see also sub-paragraph (a) of paragraph (3) of Article 216).

 

33. The Article 216 duties were not owed at all unless, in the circumstances of this case, the relevant quantitative threshold was met or exceeded. (See below.) For reasons which are explained at paragraphs 36-47 below, I have decided that the relevant threshold was met.

 

34. I endorse and apply the following statement of legal principles, which is set out at paragraph 2704 of Part 17 of Division E of "Harvey on Industrial Relations and Employment Law":

 

"... The current position in domestic law appears to be that where a winding up order is made, that generally effects the dismissal of any employee still employed at that date. Those dismissals are, in law, caused by the court order rather than by the act of the employer. The employer must nevertheless be deemed to have proposed the dismissals and [the GB equivalent of Article 216 of ERO] must be stretched to cover the case because the underlying [EU] Directive clearly applies in those circumstance ( EC Commission v Portuguese Republic: C - 55/02 [2004] ECR 1-9387, ECJ) ...".

 

35. For reasons which are explained at paragraphs 48-51 below, I have decided that the Article 216 duties were not complied with.

 

36. Paragraph (9) of Article 216 envisages the possibility of there being special circumstances which might render it not reasonably practicable for the employer to comply with some of all of the Article 216 collective consultation duties. That paragraph makes it clear that, if there are such special circumstances (which render it not reasonably practicable for the employer to fully comply with any particular requirement), the employer must take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances. Paragraph (6) of Article 217 provides that, if any question arises either as to whether:

 

(1) there were "special circumstances" or

 

(2) the employer took "all such steps towards compliance" as were reasonably practicable,

 

the onus of proof, in relation to each of those questions, is upon the employer.

 

37. In this case:

 

(1) The Company has not shown that there were special circumstances which rendered it not reasonably practicable for the Company to comply with any requirement of Article 216.

 

(2) I am not satisfied that the Company took all such steps towards complying with any relevant Article 216 requirement as were reasonably practicable in those circumstances.

 

Accordingly, the potential "special circumstances" defence has not been established in this case.

 

The threshold issue




38. The Article 216 duties only apply where an employer " ... is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less ... ".

 

39. Accordingly, paragraph (1) of Article 216 imposes what amounts to a quantitative criterion. The effect of that criterion is that the Article 216 duties do not apply at all in relation to any proposals to dismiss as redundant 19 or less employees at one establishment within the relevant period (90 days or less).

 

40. It is clear that the Company's undertaking consisted of only one establishment.

 

41. I have concluded (see paragraph 29 above and see paragraph 58 below) that the relevant dismissals took place when the liquidation occurred, and that none of the relevant dismissals happened prior to that date.

 

42. It is clear that, as a matter of law, the Company must have "proposed" to dismiss all of its employees on some date on or prior to 22 June 2016.

 

43. Accordingly, in relation to the threshold issue, there are two sub-issues:

 

(1) When did the employer first "propose", within the meaning of Article 216(1), to dismiss all of its employees?

 

(2) At the time of that proposal, did the Factory have 20 or more employees?

 

44. In R v British Coal Corporation, ex p Vardy [1993] IRLR 104, in construing the GB equivalent of Article 216(1), Glidewell LJ, made the following observations:

 

"... The verb 'proposes' in its ordinary usage relates to a state of mind which is much more certain and further along the decision-making process than the verb 'contemplates'; in other words, the directive envisages consultation at an early stage, when the employer is first envisaging the possibility that he may have to make employees redundant. [The GB equivalent of Article 216] applies when he has decided that, whether because he had had to close a plant or for some other reason, it is his intention, however reluctant to make employees redundant." ... [My emphasis]

 

In making my determination in relation to the threshold sub-issues, I have adopted and applied the legal principles set out in the quoted extract from Vardy.

 

45. In my view, by the time the Company ceased trading in April 2016, it must have realised that it was highly likely that redundancies, in respect of the whole of the Factory's workforce, were unavoidable, and that those redundancies would take place within 90 days thereafter. Accordingly, I conclude that, at least by the end of April 2016, the Company was proposing (in the sense in which that term is used in Article 216(1) of ERO) to make all of its employees redundant.

 

46. So, how many people were employed by the Company at the end of April 2016? I am satisfied that, at that point, the Company still had more than 20 employees. Accordingly, the relevant quantitative criterion was met in this case.

 

47. In arriving at the conclusion which is set out in the last preceding paragraph, I have had regard to all of my findings of fact; and, in particular, I have had regard to the following:

 

(1) On 21 July 2016, having made enquiries, the liquidator of this Company was satisfied that, at the end of March 2016, the Company had had 28 employees on the payroll.

 

(2) During the course of sworn and uncontroverted testimony, Mr Smyth confirmed that he believed that, at the time the Company ceased trading, the Company still had more than 20 employees.

 

(3) During the course of sworn and uncontroverted testimony, Mr McFeeters also told me that, at the time the Company ceased trading, it had more than 20 staff.

 

(4) I note that, during the course of the creditors' meeting on 22 June 2016, the Company's accountant, Mr J B Kennedy, talked about the Company having "20 or so employees".

 

(5) I have received no evidence whatsoever to suggest that, at any time between the date of the first lay-off and the date of the liquidation, any employee told the Company that he or she was resigning.

 

(6) I note that, in a form which was sent to the RPS on 24 June 2016, the liquidator stated that 16 people were employed by the Company on the date it became insolvent. However, I also note that, at the time that that form was being sent in, the liquidator was probably aware that precisely 16 
"ex-employees" of the Company (and only those 16) were making applications to the RPS.

 

(7) I note that it is surprising that, out of a workforce of 28, only 16 employees made an application of any kind to the RPS. However, I also note the following. First, only one of the employees who made no application to the RPS had enough service to be entitled to a redundancy payment. Secondly, several of the employees who did not apply to the RPS have names which suggest that they may be immigrants. (It is an unfortunate fact of life that immigrants are often less aware, than are locally-born workers, of their entitlements).

 

(8) In his report to the meeting of creditors which was held on 22 June 2016, Mr Kamiar Shafai stated that the Company "... had a workforce of 28".




Were the Article 216 duties discharged ?

 

48. During the Spring and early Summer of 2016, when it became apparent that the Factory was in financial difficulties, there was some relevant dialogue between the Company and Unite, so this is not a case in which there was absolutely no
pre-dismissal dialogue, of any type or quality, between Management and the Union.

 

49. The relevant dialogue mainly consisted of communications between Unite and the Company arising out of the Company's request to Unite to make representations on the Company's behalf (with a view to improving the Company's financial situation).

 

50. As Mr O'Neill, on behalf of Unite, has emphasised, such a dialogue, although creditable, did not deal with any of the collective consultation issues which are envisaged at paragraph (6) of Article 216.

 

51. Furthermore, the whole point about the Article 216 duties is that there is supposed to be an honest dialogue between management and the workers' representatives within the context of an acknowledged imminent prospect of large scale redundancies. However, until the very end, until the week before the week of the liquidation, the Company declined to acknowledge, officially at least, that there was any danger of redundancies. Furthermore, no relevant, consultation or dialogue, of any type or quality, took place at any time after the Company had eventually belatedly admitted that such a danger did exist.

 

52. Against the background set out at paragraphs 49-51 above, and for the reasons set out within those paragraphs, I am satisfied that the Company failed to comply with its Article 216 collective consultation duties.

 

Remedies

 

53. At paragraphs 54-67 below, I focus on matters which are relevant in the context of determining remedies issues. Legal principles which are relevant in that context are set out at paragraphs 74 - 87 of Dempsey (see above). In this case, I have applied those principles.

 

A protective award ?

 

54. Because I have found this complaint to be well-founded, I am obliged to make a declaration to that effect.

 

55. On the face of it, I have a discretion as to whether to make a protective award in this case. However, in light of the legal principles which are mentioned at paragraphs 75-81 of Dempsey, and having had regard to the circumstances of this particular case, I am sure that, in this case, the only appropriate determination is that a protective award should be made.

 

Starting when ?

 

56. The protected period has to begin with the date on which the first of the relevant dismissals takes effect, or the date of the award, whichever is the earlier. (See paragraph (4) of Article 217). Accordingly, in the circumstances of this case, it is clear that the protected period must begin on 22 June 2016.

 

57. My reasoning for arriving at the conclusion which is set out in the last preceding paragraph is as follows.

 

58. In the KS Statement, there was talk about the claimants having been given protective notice. However, they were obviously given no such notice. Indeed, until the week commencing 6 June 2016, no relevant employee was informed, by or on behalf of the Company, that his employment was going to be terminated. No relevant employee was ever given any written notice of termination. I note that on 22 June, Mr James Kennedy, at the meeting of Company creditors, talked of Company employees having been "out of a job" since the end of April. However, I am sure that that comment was merely a recognition of the practical effects of the fact that the relevant workers were not carrying out any work during the periods of lay-off. (I am sure that the comment was not a reference to Mr Kennedy's view as to the date of termination of the relevant workers' contracts of employment). The fact that the second lay-off notice specified that the second period of lay-off would last until 17 June 2016 is an indication that, in May 2016, the management of the Company was taking the view that the employments of the relevant workers were to continue at least until 17 June. In all the circumstances, having had regard to all the findings of fact which are set out in this Decision, I am satisfied that the employments of the relevant workers came to an end only on the date of the liquidation.

 

Duration?

 

59. In deciding on the duration of the protective award, I have adopted and applied the statements of principle which are set out at paragraph 84 of Dempsey.

 

60. In my view, this was not a case in which there was no relevant dialogue at all with the relevant representatives of the workers (which is Unite, in the context of this particular complaint). There was a dialogue, in April and early May 2016, between the Company and Unite, in relation to the Company's financial difficulties.

 

61. However, that dialogue was of limited value and it was of limited scope. (See paragraphs 49-51) above.

 

62. Against the background referred to at paragraphs 60 and 61 above, I have decided that this is not a case in which there should be a full 90 day award. I think that a reduction of approximately one-third is appropriate in these circumstances. Accordingly, an award of 60 days' duration is being made in this case.

 

For whom ?

 

63. As already noted above, Unite was recognised by the Company, for collective bargaining purposes, in respect of many of the Company's workers. (See paragraph 24 above.)

 

64. Paragraph (1) of Article 216 imposes the obligation to collectively consult. But, consult whom? The answer is that the obligation is to consult "appropriate representatives" of any of the employees who may be affected by the proposed dismissals or who may be affected by measures taken in connection with those dismissals. (See paragraph (1) of Article 216.). Paragraph (3) of Article 216 makes it clear that, if the affected employees are of a description in respect of which an independent trade union is recognised by their employer, that trade union's representatives are the "appropriate representative" for the purposes of
Article 216(1).

 

65. Paragraph (3) of Article 217 specifies that a protective award is an award " ... in respect of one or more descriptions of employees ..." who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, " ... in respect of whose actual or proposed dismissal the employer has failed to comply with a requirement of Article 216 ...".

 

66. In light of the provisions of Article 216 and 217 which have been highlighted at paragraphs 64 and 65 above, I am sure that, in the event of an Article 216 default, in a case in which a union was recognised (for collective bargaining purposes) in respect of certain categories of workers, it is generally appropriate that any protective award should apply to all the redundant workers who were within the category, or categories, of worker in respect of which the relevant union was recognised.

 

67. Having considered the particular circumstances of this particular case, I see no reason why that general rule should not apply in this case. Accordingly, this protective award applies to all of the Factory's manual workers, weavers, engineers and menders who were made redundant by the Company in June 2016.

 




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 Communities ("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 expressly 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: 23 November 2016, Belfast

 

Date decision recorded in register and issued to parties: