THE INDUSTRIAL TRIBUNALS  

		CASE REF:    2836/11  

CLAIMANT:	Gary Kirkpatrick

RESPONDENT:	T J Hughes in Administration

DECISION

(A)	It is declared that the claimant’s protective award complaint under Article 217 of the Employment Rights (Northern Ireland) Order 1996 is well-founded.

(B)	A protective award is made in respect of this claimant.

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

(D)	The protected period began on 23 August 2011 and lasted for 90 days.

Constitution of Tribunal:

Chairman  (Sitting alone):	Ms M Bell

Appearances:

The claimant was represented by Mr Kilpatrick of Thompson McClure Solicitors.

The respondent was not represented.

1.	The claimant sought a protective award under Article 217(a) of the Employment Rights (Northern Ireland) Order 1996 for the respondent’s failure to consult and to provide statutory information under Article 216 in relation to dismissals by reason of redundancy on 23 August 2011 following closure of the respondent’s Belfast store on 23 August 2011.

2.	No response was presented by the respondent.

3.	The Respondent entered into administration on 30 June 2011 and S Allport and T A Jack of Ernst & Young were appointed as joint Administrators.  By correspondence of 9 November 2011 the Administrators confirmed consent for the case brought by the individual employees to proceed against the respondent.  These proceedings were not contested on behalf of the respondent company.

4.	An application was made at the outset of the hearing by Mr Kilpatrick to amend a typographical error in the originating claim form to read 217 ‘(a)’ rather than ‘(c)’.  I am satisfied that this does not alter the substance of the claim and the application is allowed.

EVIDENCE

5.	This case was one of six in which Mr Kilpatrick represented the claimant and it was agreed that evidence in one would be used as evidence in all.  Oral evidence was given by Mr Gary Kirkpatrick, CRN 2836/11 and a bundle of documentary evidence provided.

FINDINGS OF FACT

6.	The claimant was an employee of the respondent.

7.	By letter of 14 October 2011 the Administrator confirmed that USDAW were not recognised by the respondent.

8.	The workforce to which the claimant belonged was not unionised.

9.	No relevant employee representatives were elected.  The employer made no arrangements in relation to the election of relevant employee representatives.

10.	All of the employees who constituted the workforce of the respondent (consisting of more than 20 employees) were dismissed by reason of redundancy on 23 August 2011 following notification on 21 August 2011.

11.	Prior to the dismissals, no collective consultation took place.

12.	No special circumstances which rendered it not reasonably practicable for the respondent to carry out a collective consultation process have been brought to the attention of the tribunal.

THE LAW

13.	An employer has a duty under Article 216 of the Employment Rights (Northern Ireland) Order 1996 where proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less to consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected.  Article 216 sets out who appropriate representatives are, being trade union representatives where an independent union is recognized by their employer and otherwise employee representatives chosen by the employer from those elected for another purpose but approved by those employees to receive information and be consulted about the proposed dismissals on their behalf or employee representatives elected for the purpose in accordance with Article 216A(1) which sets out requirements for an election to be made by an employer.

14.	Under Article 217 of the 1996 Order where an employer has failed to comply with a requirement of Article 216 or Article 216A, a complaint may be presented to an industrial tribunal on grounds including at 217 (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.  If a tribunal finds a complaint well-founded it shall make a declaration to that effect and may also make a protective award for the protected period determined just and equitable by the tribunal in all the circumstances having regards to the seriousness of the employer’s default, not exceeding 90 days.

APPLYING THE LAW TO FACTS FOUND

15.	The claimant’s complaint is well-founded.  No special circumstances have been brought to the attention of the tribunal which rendered it not reasonably practicable for the respondent to carry out a collective consultation process.  The tribunal considers it just and equitable in the circumstances that the 90 day maximum award should apply.

RECOUPMENT

16.	The attention of the parties is drawn to the Recoupment Notice below.

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

Recoupment Notice

[1]	In the context of this Notice, “the relevant benefits” are jobseeker’s allowance, income support and income-related employment and support allowance.

[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 Social Security Agency (“the Agency”) 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 Agency 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 Agency (within 10 days) full details of any employee involved (name, address, insurance number and date, or proposed date, of dismissal).  That is a requirement of Regulation 6 of the Regulations which are mentioned below.

[4]	The employer must not pay anything at all (under the protective award) to any such employee unless and until the Agency has served on the employer a recoupment notice, or unless or until the Agency has told the employer that it is not going to serve any such notice.

[5]	When the employer gets a recoupment notice, the employer must pay the amount of that recoupment notice to the Agency; 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 Agency 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 Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 (” 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 Agency 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 applicable period or as soon as practicable thereafter.  (The applicable period 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 explicitly 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” 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.

Chairman:

Date and place of hearing:       20 November 2012, Belfast.

Date decision recorded in register and issued to parties: