THE INDUSTRIAL TRIBUNALS

CASE REF:	2351/12

CLAIMANT:		Kenneth Tipping

RESPONDENT:	BDG Group Ltd (in liquidation)	

DECISION 
(A)	The claimant’s protective award complaint is well-founded.  

(B)	I have decided to make a protective award 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 26 March 2012 and lasted for 90 days.

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

The address of the respondent is c/o McClean & Co, Donegall House, 7 Donegal Square North, Belfast BT1 5GB.

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

Appearances:
The claimant was self-represented.

The respondent had not presented a response in these proceedings.

REASONS

1.	The claimant was an employee of the respondent.  The workforce to which the claimant belonged was not unionised.  No relevant employee representatives had been elected.  The employer had made no arrangements in relation to the election of relevant employee representatives.  All of the employees who constituted the workforce of the respondent (consisting of more than 20 employees) were dismissed by reason of redundancy, from 26 March 2012 onwards, during a period of less than three weeks.  Prior to those dismissals, no collective consultation took place.  I am unaware of any special circumstances which rendered it not reasonably practicable for this employer to carry out a collective consultation process.  

2.	In deciding to make a protective award, and in determining the period of the protective award, I have had regard to the sworn oral testimony of the claimant, and to the comments made in the Court of Appeal judgment in Haine v Day [2008] IRLR 642, especially at paragraphs 61-68 of the judgment.  

3.	The claimant was dismissed by reason of redundancy, by the respondent, with effect from 26 March 2012.  

4.	The claimant has made it clear to me that he wishes to make a claim for a protective award in these proceedings.  That is the only claim which he wishes to make in these proceedings.

5.	The claimant has received payments, in respect of other employment debts, from the Department for Employment and Learning.  

6.	I am satisfied that this claimant’s claim form can properly be construed as consisting of a protective award complaint pursuant to Article 217 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”).  

7.	By letter dated 20 December 2012, the liquidator made it clear that he had no objection to the claim form being treated as including a complaint under Article 217 of the Order.

8.	In the same letter, the liquidator drew attention to the fact that the complaint had not been made within the primary limitation period provided for in the Order.

9.	As the liquidator also pointed out in his letter, the claim form was not presented until 22 November 2012.

10.	On 28 August 2012, I made protective awards in Article 217 proceedings which had been brought by some of the former colleagues of this claimant, in proceedings against the company which is the respondent to these proceedings.  

11.	Paragraph (5) of Article 217 contains the time limits in respect of protective award complaints.  Paragraph (5) provides as follows:

	“(5)  An industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal - 

	(a)	before the date on which the last of the dismissals to which the complaint relates takes effect, or

	(b)	during the period of three months beginning with that date, or

	(c)	within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented during that period of three months.”

12.	Accordingly, paragraph (5) of Article 217, in effect, contains two relevant time-limits.  The first time-limit, the primary time-limit, is contained in sub-paragraph (a).  The secondary time-limit is contained in sub-paragraph (c).  

13.	The secondary time-limit is only applicable if I am satisfied that it was not practicable for the complaint to be presented during the primary time-limit (of three months from the date on which the last of the relevant dismissals took effect).  

14.	On the basis of the claimant’s sworn oral testimony, I am satisfied that the main reason for the claimant’s delay, during the primary limitation period, was that he was not aware, at any time during that period, of the protective award complained.

15.	In the context of “reasonable practicability”, in relation to complaints to an industrial tribunal, the issue is whether or not it was reasonably feasible for a claimant to make the relevant complaint within the primary time-limit.  In that context, it is clear that ignorance of one’s legal rights can make it not reasonably practicable to present a complaint within the primary time-limit, if, and only if, that ignorance is reasonable.  

16.	In effect, the time limits which apply in the context of protective awards are broadly the same as the time-limits which apply in relation to unfair dismissal complaints.  Courts and tribunals have consistently held that ignorance as to one’s entitlement to make a complaint of unfair dismissal is not reasonable ignorance.  (This is on the basis that the general public now are well aware of entitlements to make unfair dismissal complaints).  

17.	However, the situation is different in respect of protective award complaints.  The availability of remedies in respect of collective redundancy consultation failures, the threshold (of 20 redundancies), and the circumstances in which an individual, as distinct from a trade union or employee forum representative, can seek such remedies, are all matters which are not generally well known.  

18.	Accordingly, I have decided that the claimant’s ignorance as to his entitlements in relation to making a protective award complaint was reasonable ignorance.  

19.	Accordingly, I am satisfied that it was not reasonably practicable for the claimant to comply with the relevant primary time-limit.  

20.	The remaining time-limit issue was whether or not these proceedings have been brought within a further period which I consider to be reasonable.  On balance, I do consider that “further period” to be reasonable in the circumstances of this case.  

21.	I am satisfied that the claimant became aware of the potential availability of a protective award remedy as a result of a conversation with a work colleague, and that this happened during the month of November 2013.  The reality, in the present case, is that any payments made pursuant to this award will be made by the Department for Employment and Learning; it is unlikely that the Department will be financially embarrassed by this claimant’s delay in making the protective award complaint.  The “further period” (beginning on the date of expiry of the primary limitation period, and ending on the date of the presentation of the proceedings in this case amounted to approximately five months.  In my view, that “further period” is close to the boundaries of what I consider to be “reasonable” (in the sense in which the term “reasonable” is used in  the context of paragraph (5) of Article 217 of the Order).  However, in all the circumstances of the case, I consider that period, on balance, to be reasonable.

22. 	In this case, I announced my decision at the end of the hearing.  At the same time, I gave brief oral reasons for that decision.  Accordingly, the foregoing is intended only to contextualize, amplify and confirm those reasons.

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 Department of Social Development (“the Department”) 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 Department 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 Department (within 10 days) full details of any employee involved (name, address, insurance number and the 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 Department has served on the employer a recoupment notice, or unless or until the Department has told the employer that it is not going to serve any such notice. 

[5]	When the employer receives a recoupment notice, the employer must pay the amount of that recoupment notice to the Department; 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 Department 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 Department 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 applicable” or as soon as practicable thereafter.  (The period applicable 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” (see Regulation 7 of the Regulations) 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:  6 February 2013, Belfast.		

Date decision recorded in register and issued to parties:

___________________________
For Secretary