THE INDUSTRIAL TRIBUNALS

CASE REFS

CLAIMANT:			George Alexander Conroy		6826/09
				John Wilkingshaw				7454/09
				Ian Munn					7456/09
				Ian Garrett					7478/09
				Denis McGaffin				7558/09
				Ian Samuel Jellie				243/10
	
RESPONDENT:		Regency Spinning Limited – in administration

CERTIFICATE OF CORRECTION
In the decision issued on 28 February 2011:-

The name of the second named claimant should read as follows:

“John Walkingshaw” and not John Wilkingshaw.

Chairman:

Date:

THE INDUSTRIAL TRIBUNALS

										CASE REFS

CLAIMANTS:		George Alexander Conroy		6826/09
				John Wilkingshaw				7454/09
				Ian Munn					7456/09
				Ian Garrett					7478/09
				Denis McGaffin				7558/09
				Ian Samuel Jellie				243/10

RESPONDENT:		Regency Spinning Limited – in administration

DECISION
The decision of the tribunal is that the claimants are entitled to a protective award.

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

Appearances:
The claimants appeared in person and represented themselves.
The respondent did not appear and was not represented.

Issue

1.	The claimants presented claims for a protective award.  The respondent did not enter any response to the claims.  The claimant sought the consent of the administrators.  The administrators advised that as administration had completed they no longer had the power to grant a consent.  Each of the claimants then sought and obtained the permission of the High Court to continue their proceedings.  The claimants’ claims were brought significantly outside the time-limit laid down for bringing a claim for protective award and the tribunal therefore also had to decide whether to exercise its discretion to extend the time for bringing such a claim. 

Facts found

2.	The claimants were employed by the respondent.  Their employment ceased on 8 November 2007.  There was no warning of the closure and many of the employees attending were not allowed into the factory.  They were met by a representative of the administrators who provided forms for the employees to complete.  

3.	None of the claimants were members of any trade union.  There was no trade union recognised in the workplace as having collective bargaining rights.  There was no notice of any kind from the respondent of any impending redundancy situation.  Many employees in fact only discovered that the business closed through reports on the media.

4.	The claimants received letters from the administrator some three weeks after the closure of the respondent.  They were invited to a meeting at which they were advised that their interests would be looked after by the administrators and that all their statutory entitlements would be paid.  There then followed an extensive period of communication and correspondence with the administrators.  The claimants accepted that all their statutory entitlements were paid albeit in a piecemeal fashion.  The correspondence from the administrators included details of what each employee was entitled to and also sent out creditors reports.  The claimants had no knowledge of their entitlement to seek a protective award.  The first the claimants became aware of it was in a conversation between Mr Conroy and a Mr Garrett who had just taken a claim for a protective award and informed Mr Conroy he may be entitled to the same award.  The claimants in this case then sought urgent advice and presented their claims.  Their claims were presented too late to be joined to the earlier group of claims.  The claimants considered that they had been led to believe by the administrators that they had received everything they were entitled to.  The claimants felt that they should have been informed of the possibility of obtaining a protective award and until August 2009 they had no knowledge of the right to take a claim for a protective award.  The claimants’ claims were then lodged in the following weeks in 2009.

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 employees 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 affect 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.

8.	There is a time-limit for bringing a claim for protective award.  Under Article 217 of the Employment Rights (Northern Ireland) Order 1996 such a claim must be brought within three months of the date of the last of the dismissals to which the complaint relates.  The tribunal has a discretion to extend that time if it is satisfied that it was not reasonably practicable for the complaints to be presented during that three month period and if it is so satisfied it is further satisfied that the complaints were brought within such further period as the tribunal considers reasonable.  

Tribunal’s conclusions

9.	In considering my discretion to extend the time for bringing a claim, I must, firstly, consider whether the claim should have been brought within the three month period.  The test is not what is possible nor even what is practicable but what is reasonably practicable.  A liberal construction should be given in favour of the employee (Marks & Spencer  v  Williams-Ryan [2005] IRLR 562).  It is acknowledged that the test is a harder test to satisfy than that employed in other jurisdictions (ie, what is just and equitable).  However, the discretion is one for the tribunal to exercise and should be based on the facts of each individual case.  In this case I am satisfied that it was not reasonably practicable for the claims to be brought within the original three month period.  The claimants had suffered a stressful and shocking termination of their employment followed by a period of some confusion.  The administrators attempted to establish some order but in doing so gave assurances to the employees that all matters were being dealt with and that all entitlements would be met.  Indeed, this is in a large part what happened.  The various statutory entitlements of the employees were paid over a lengthy period of time.  There was regular contact with the administrators and payments of outstanding amounts were made, albeit in a piecemeal fashion.  I accept that these claimants were not aware of their right to seek a protective award.  Faced with the sudden and stressful closure and loss of their employment and the assurances of the administrators that all their entitlements were being dealt with and would be met, the claimants legitimately accepted those assurances.  I consider that these impediments were sufficient to render it not reasonably practicable to have represented a complaint to the tribunal within the three month period.  I am further satisfied that, on the particular facts of this case, that the claimants had no knowledge of their right until the conversation with another ex-employee brought this to their attention and that they then moved speedily and appropriately to seek advice and to present their claims.  I have therefore decided, in the particular circumstances of this case, that it is appropriate for me to exercise my discretion to extend time and to accept the claims.  

10.	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 this failure.  The obligation is on the respondent to show such special circumstances.

11.	I determine that the claimant’s complaints are 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 8 November 2007.  I order that the respondent pay remuneration for the protected period to all the named claimants.  

12.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing:	21 January 2011, Belfast

Date decision recorded in register and issued to parties: