THE INDUSTRIAL TRIBUNALS
CASE REF: 188/05 & others
(see attached list)
CLAIMANTS: Alcock & others
(see attached list)
RESPONDENTS: 1. Donaghadee Carpets Limited (in administrative
receivership)
2. PricewaterhouseCoopers
DECISION
The unanimous decision of the tribunal is that the claims made under Article 217 of the Employment Rights (Northern Ireland) Order 1996 are well founded. The tribunal makes a protective award for the period of 90 days from 21 December 2004 in respect of each claimant.
Constitution of Tribunal:
Chairman: Mrs M Watson
Members: Mr J Smyth
Mrs F Cummins
Appearances:
The claimants present were John Meritt, Andrew Lindsay and Gary Taylor.
The respondent's representative: Mr Michael Wilson, Solicitor of Elliott Duffy Garrett, Solicitors.
This decision is given in summary form.
Background to hearing
- There had been a Case Management Discussion in relation to these claims which had arisen from the termination of the employment of the workforce of Donaghadee Carpets Ltd, the respondent company, which was now in administrative receivership. This discussion had decided that the issues for determination by this tribunal were:-
(i) whether there had been any consultation with either the trade union, elected representatives or individuals about the redundancy; and
(ii) if not, were there any special circumstances which prevented such consultation and whether such consultation was reasonably practicable in the circumstances.
It was also directed that this tribunal should consider the application of Mr Hanna, case reference number 675/05 as it appeared this had been presented out of time.
- The case management discussion had also decided that Mr Meritt's and Mr Lindsay's cases should be lead cases which would be of persuasive value as regards the other claimants and the respondents. It was then ordered that the claims be considered together. None of the other claimants, who were later notified of the outcome of the discussion, objected to this course of action.
- The department had been notified of the administrative receivership on 4 January 2005. They were also informed by this tribunal of the directions made at the case management discussions relating to the lead cases. They did not wish to make representations to this tribunal prior to this decision.
Tribunal Findings
- At the outset of this hearing, Mr Wilson, solicitor for the respondent, sought leave to cease to represent the company. Since the previous hearing, the receivers for the respondent company had reported that there was no money available for unsecured creditors. While the notice of appearance had indicated that they would seek to plead special circumstances with regard to the statutory requirement of consultation, this was no longer the case. Before withdrawing, Mr Wilson informed the tribunal that the receiver took no issue with the date of termination or the lack of consultation. It was also common case that on the date of termination, 21 December 2004, the period of employment was less than one year.
- With regard to the claim of Mr Desmond Hanna, case reference number 675/05, the tribunal noted that this was stamped as received by the office on 12 April 2005. The tribunal considered the content of that application and the complainant's letter with it which stated that an earlier application had been made but not received by the office. It was presumed lost in the post. Mr Hanna had acted immediately he became aware that the other claimants' applications had been acknowledged by the tribunal office. As he had not known that his earlier application had been lost in the post, the tribunal find that he lodged his application as soon as it was reasonably practicable for him to do so and consolidates his claim with those of the other claimants.
- The tribunal was provided with the statements of the two claimants which they adopted as their evidence. They and all the other claimants had previously been employed at the same premises by Carpets International (UK) Ltd until that company's insolvency in September 2003. They took up employment with the new company, Donaghadee Carpets, formed by the former management between December 2003 and February 2004. The employment terminated summarily on 21 December 2004. The first indication of any difficulty was when each employee was contacted and told not to return to the workplace as the company had ceased trading. As Mr Wilson had already indicated that the respondents took no issue with the facts as pleaded by the claimants, the tribunal declares that the complaints of the claimants made under Article 217 of the Employment Rights (Northern Ireland) Order 1996 are well founded.
- Since the respondent did not comply with the statutory consultation requirements and did not put forward any defence for that failure, the tribunal is satisfied that a protective award should be made. In determining the appropriate award, the tribunal took into account the seriousness of the respondent's total default of its obligation to consult and give notice to the employees under Article 216 of the Employment Rights (Northern Ireland) Order 1996. The advice given by the English Court of Appeal in Susie Radin Ltd v GMB & Ors [2004} IRLR 400 is that tribunals should start with the maximum award and only reduce where there are mitigating circumstances to justify any reduction. No such mitigation is present here. The tribunal therefore makes a protective award for the period of 90 days from 21 December 2003 in respect of each of the claimants in these cases.
The provisions of the Employment Protection (Recoupment of Jobseekers Allowance & Income support) Regulations (Northern Ireland) 1996 apply.
Chairman:
Date and place of hearing: 14 September 2005, Belfast
Date decision recorded in register and issued to parties:
