THE INDUSTRIAL TRIBUNALS

CASE REF:   371/10

CLAIMANT:			Unite the Union

RESPONDENT:		J & G Engineering (NI) Limited – In Liquidation

DECISION
The decision of the tribunal is that the claimant’s complaint is well-founded.  The tribunal makes a protective award for 90 days protected period in respect of all the employees of the respondent dismissed as redundant from 13 January 2010 onwards.

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Kinney

Appearances:
The claimant was represented by Mr J O’Neill, Solicitor, of Thompsons McClure, Solicitors.
The respondent did not appear and was not presented.

1.	At the outset of the hearing, Mr O’Neill confirmed that the respondent’s liquidation was a voluntary liquidation and permission of the High Court was not required to continue proceedings.  I then heard evidence from Mr Terry Collins, a full-time official with the claimant.  

2.	On 12 January 2010 the employees of the respondent were contacted at home and told to attend the company premises the following day for a meeting.  On 13 January 2010 the employees were told that the respondent was ceasing trading with immediate effect and all employees would be made redundant with immediate effect.  There were approximately 60 employees.

3.	The claimant was recognised by the respondent on behalf of employees.  The respondent was a member of the Joint Industrial Board for the Electrical and Contracting Industry under whose auspices the terms and conditions of employment for the respondent were agreed.  The claimant had negotiating and representative rights for all employees, not just members of the claimant union.  

4.	The respondent carried out no consultation whatsoever, nor did it provide any information in advance warning of the possibility of redundancies. 

The law

5.	Under the provisions of Articles 216 – 220 of the Employment Rights (Northern Ireland) Order 1996, where an employer is proposing to dismiss 20 or more employees as redundant, it must consult with the appropriate representatives of the employees.  Representatives from a trade union are the appropriate representatives of any affected employee in respect of whom that union is recognised by the employer.  Where the trade union makes a complaint of breach of the duty to consult and the tribunal finds the complaint well-founded, it must make a declaration to that effect and may also make a protective award.  The protected period begins on the date on which the first of the dismissals take effect and must not exceed 90 days.

6.	In calculating the length of the protected period the court gave guidance in the case of GMB v Susie Radin [2004] IRLR 400.  The court said that the tribunal has a wide discretion to do what is just and equitable in all the circumstances.  A proper approach where there is no consultation is to start with the maximum period of 90 days and reduce it only if there are mitigating circumstances justifying a reduction.  

7.	The employer may show special circumstances which render it not reasonably practicable to comply with the requirement to consult and must in any event take all such steps as are reasonably practicable to consult.  Insolvency per se is not a special circumstance.

Conclusion

8.	It is clear in this case that there has been no consultation whatsoever by the respondent and that the respondent is in breach of Article 216 of the Employment Rights (Northern Ireland) Order 1996.  The respondent took no steps at all to provide any consultation and the tribunal has no evidence of any special circumstances in existence to mitigate the failure.  The obligation is on the respondent to show such special circumstances.

9.	I determine that the complaint is well-founded and I make a declaration accordingly.  Following the guidance in Radin I determine that the correct protected period in this case is 90 days commencing with the first dismissal on 13 January 2010.  The declaration and the protective award is made in respect of all the employees dismissed as redundant from 13 January 2010 and not just members of the claimant union.  The respondent recognised the representative rights of the claimant in respect of all employees.  I order that the respondent pay remuneration for the protected period.

Chairman:

Date and place of hearing:	16 August 2010, Belfast

Date decision recorded in register and issued to parties: