BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
United Kingdom Employment Appeal Tribunal |
||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Harford & Ors v. Secretary of State for Trade and Industry [2008] UKEAT 0313_07_1202 (12 February 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0313_07_1202.html Cite as: [2008] UKEAT 0313_07_1202, [2008] UKEAT 313_7_1202 |
[New search] [Printable RTF version] [Help]
At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE BEAN
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellants | MR N CARR (of Counsel) Instructed by: Messrs Raleys Solicitors Regent House Regent Street Barnsley South Yorkshire S70 2EG |
For the Respondent | MR M BARNES (of Counsel) Instructed by: The Treasury Solicitor (Employment Law Team One Kemble Street London WC2B 4TS |
SUMMARY
Redundancy: Protective award
Practice and Procedure: Parties
Dismissals without consultation when company placed in receivership - protective award made in favour of GMB trade union representing manual workers in respect of those employees "dismissed on 3 May or 5 May 2006" - held, that this award could not benefit manual workers, not members of the union, dismissed on other dates in May 2006, and that as matters stood such workers had no remedy against the Secretary of State; but that such workers could apply to the employment tribunal to be joined out of time as parties to the GMB case, for the decision in the GMB case to be reviewed so as to cover dismissals on other dates, and for any consequent protective award to be recoverable as a debt from the Secretary of State.
THE HONOURABLE MR JUSTICE BEAN
"In the case of William Freeman Ltd, on an application made by the GMB, an Employment Tribunal on 3 October 2006, made a protective award in respect of employees who were made redundant on 3 May 2006. The effect of this was that anyone dismissed after that date was not covered by the award. It seems that subsequently the GMB became aware that two of its members were not dismissed until 5 May 2006 and the union made a further application to an Employment Tribunal, which amended the original ruling to cover employees dismissed on both 3 May 2006 and 5 May 2006. This again means that any employees dismissed after 5 May 2006 are not covered by either judgment.
In order to be able to claim a protective award from the RPD [the Redundancy Payments Directorate] it will be necessary for you to obtain a further Tribunal ruling covering the date of your dismissal. This will apply equally to any other employees who are in a similar position. As the GMB's second application was only in respect of two of its members I am assuming you are not a GMB member. However, that does not prevent you making an application yourself. If you wish to do so, which I would advise you to do, the form you need is an ET1."
"188 Duty of employer to consult … representatives
(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.
(1A) 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 subsection (1), at least 90 days , and
(b) otherwise, at least 30 days.
before the first of those dismissals takes effect.
[(1B) For the purposes of this section the apppriate 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 section, 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 section, in an election satisfying the requirements of section 188A(1).]
(8) This section does not confer any rights on a trade union, a representative or an employee except as provided by sections 189 to 192 below.
189 Complaint … and protective award
(1) Where an employer has failed to comply with a requirement of section 188, or section 188A, a complaint may be presented to an [employment] 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.
(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 section 188,
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 section 188;
but shall not exceed 90 days …
190 Entitlement under protective award
(1) Where an [employment tribunal] has made a protective award, every employee of a description to which the award relates is entitled, subject to the following provisions and to section 191, to be paid remuneration by his employer for the protected period.
192 Complaint by employee to [employment tribunal]
(1) An employee may present a complaint to an [employment tribunal] on the ground that he is an employee of a description to which a protective award relates and that his employer has failed, wholly or in part, to pay him remuneration under the award.
…
(3) Where the tribunal finds a complaint under this section well founded it shall order the employer to pay the complainant the amount of remuneration which it finds is due to him.
(4) The remedy of an employee for infringement of his right to remuneration under a protective award is by way of complaint under this section, and not otherwise."
"3. The GMB trade union was recognised by William Freeman Limited as the representative of the manual workers employed at its Barnsley establishment and all the Claimants within this application fell within the category of manual workers."
The grounds of complaint then refer to the Tribunal's decision in the GMB case and the review decision adding the two GMB members dismissed on 5 May, and continue:
"None of the Claimants in this application were dismissed on either 3 May 2006 or 5 May 2006. None of them are members of the GMB trade union. Accordingly the GMB has no interest in pursuing claims on their behalf and had no reason to include them in its application for a review of the original Judgment. Under s189 of the aforesaid 1992 Act the cause of action to bring a complaint in respect of a failure to consult pursuant to s188 vested in a recognised trade union and none of the employees as individuals had the right to present claims to the Employment Tribunal in respect of that failure to consult…It does not appear to be open to the Claimants in this application to apply to the Employment Tribunal for a further review of the decision given on the GMB's application because rule 34 of schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 only permits an application for review to be made by a party to the relevant decision."
The grounds of complaint went on to ask the tribunal to determine whether the Claimants were entitled to claim under the protective award and if so to quantify the amount so payable. They ended by saying that it was not reasonably practicable to present the claims earlier.
"It is not the Secretary of State's practice to participate in the part of the hearing relating to the allegations about the employer's failure to observe the redundancy consultation legislation. The facts surrounding this are considered to be an issue between employer (or insolvency practitioner) and the appropriate employees' representatives to which the Secretary of State cannot useful contribute. However, liability for payments, within limits, is acknowledged."
"None of the Claimants attended the hearing nor did I have the benefit of any written statements. Salient matters which I can identify from the papers before me, which includes a bundle of documents prepared by the Claimants solicitors, are as follows:
4.1 None of the Claimants are or were members of the GMB.
4.2 I am assuming that none of the Claimants were manual workers (whom the GMB did represent). However, as none of the claim forms have been completed at Section 4 I have no information as to what job these 13 Claimants actually did. However I deduce from the HR1 document that I have from the GMB case that the current 13 are the managerial/technical staff therein referred to.
4.3 As matters stand, I can only assume that the current Claimants were not consulted and nor were any representatives who might or might not have been elected on their behalf for that purpose. I have to make that assumption because it does not appear to be addressed anywhere in the claims that are before me. As the claim is brought against a Respondent which was not the employer and so had no duty to consult that is hardly surprising.
4.4 From the document headed "Draft Schedule of Agreed Facts" it appears that Mr Harford and one colleague, Mr Betton, were dismissed on 6 May 2006; 6 more of the Claimants were dismissed on 26 May 2006, 1 on 5 May, 3 on 12 May and 1 on 19 May."
"7.3 The judgment in Brauer Coley goes on to make clear that if the Claimant is a trade union that claim [under s189] must be based upon a breach of the obligation owed to the trade union. It followed that a Tribunal could only make a protective award in respect of the section of employees for which the trade union was recognised by the employers. In the Brauer Coley case that was the shop floor engineering workers. Membership of the union was not essential, but membership of the particular part of the work force in respect of which the union was recognised, was essential.
8.1 Two stark facts emerge. First the only proceedings which have been brought seeking a protective award were those brought by the GMB. Secondly, the present Claimants, whatever the date of their dismissal, were not within the category of the work force in respect of which the GMB were recognised. The GMB were recognised in respect of manual workers at William Freeman's factory. They were not recognised in respect of managerial or technical staff.
8.2 In those circumstances I cannot accept that the protective awards I have made in the GMB case can benefit the present Claimants. In those circumstances I conclude that the appeal against the decision of the Secretary of State is not sustained, albeit for slightly different reasons than those stated by the Secretary of State. Moreover, I do not have jurisdiction to determine any claim for a protective award for these claimants (de novo) as no such claim is before me.
…
8.5 Is a Review possible?
Not wishing to make a mountain out of a mole hill, nor to see these Claimants kept out of an award on a technicality, I have considered whether it is appropriate for me to review of my own initiative my judgment in the GMB case. However I find that I cannot. In the absence of the relevant claim by the relevant Claimants it would be wrong for me to "re-write" the GMB judgments so as to give a remedy to the present Claimants when no such claim is before the Tribunal.
8.6 Although it is not my function to give advice to the parties, the Claimants may wish to give consideration to presenting their own individual claims pursuant to Section 189(1)(a) and/or (d) of the 1992 Act if so advised."