THE INDUSTRIAL TRIBUNALS

CASE REF:   321/08

CLAIMANT:		Alan Campbell
		(‘Lead’ case – Campbell & Others)

RESPONDENTS:		1.	Regency Spinning Limited (in administration)
2.	Christopher Ratten and Jeremy Woodside of Tenon Limited
T/A Tenon Recovery as Joint Administrators of Regency Spinning Limited

DECISION
The unanimous decision of the tribunal is that the first-named respondent failed to comply with the requirements of Article 216 of the Employment Rights (Northern Ireland) Order 1996 and the tribunal makes a protective award under Article 217 of the 1996 Order for the period of 90 days.

Constitution of Tribunal:
Vice President:		Mrs P Smyth
Members:			Mr M Grant
				Mr N Wilkinson

Appearances:
The claimant was represented by Mr N Richards, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors
The respondent and administrator did not appear, nor were they represented.

Reasons

1.	The issues for the tribunal are:-

(1)	whether the first-named respondent complied with the requirements of Article 216 of the Employment Rights (Northern Ireland) Order 1996; and if so

(2)	to determine the appropriate period for a protective award.

2.	The administrators for the respondent indicated that they did not intend to appear to contest the issue.  

3.	The tribunal heard evidence from the claimant as a ‘lead’ case for a group of 43 claimants, each of whom seeks a protective award.  Having heard the evidence of the claimant the tribunal is satisfied of the following facts on a balance of probabilities:-

(a)	The claimant worked as an operative for the first-named respondent for a period of 16 or 17 years prior to his dismissal by way of redundancy.  

(b)	The claimant was a shop steward and had been elected to that position by his colleagues.  There was an officially recognised union at the respondent company, however there was no specific agreement between the employer and the union for bargaining purposes.  Therefore, there were no officially recognised trade union representatives for the purposes of consultation.  

(c)	The claimant was first alerted to possible difficulties in the company in April 2007 because machines on the shop floor were turned off and more than one employee was allocated to each machine.  There was however, no communication from management to workers to confirm that there were difficulties.

(d)	The claimant approached management and had a meeting in order to obtain information regarding the state of the company.  The claimant was told that there was nothing to worry about but that it was likely the employees would be placed on a three-day week until there was an upturn in orders.  Management indicated that it was anticipated that the three-day work period could last between 12 and 16 weeks.  

(e)	At no time was the possibility of redundancy mentioned to the claimant at this meeting nor at any other stage.  

(f)	A three-day week was imposed from April 2007 until November 2007 apart from one week in July when the employees were asked to work a full week.  Between April and November 2007 no further communication took place between management and the employees.  

(g)	At one stage the claimant had another meeting with management because he was concerned that people were leaving the company rather than work a three-day work because they could not live on those wages.  Mr Johnston, the factory manager, confirmed to the claimant that the owners of the company did not believe in making redundancies.  

(h)	On 8 November 2007 the claimant completed his shift at 5.00 pm.  At 5.30 pm he received a telephone call from a union representative, Mr Davy McMurray, to inform him that the factory had been locked up and administrators were in the factory.  The claimant subsequently saw coverage of the locked factory on the news that night.  That was the first time the claimant was made aware that any employee was redundant.  

(i)	The following day the claimant went to the factory which was locked.  No notices appeared on the door and after speaking to the administrator, Mr Ratten, the claimant put a notice on the door to inform other employees that the factory was closed.  

(j)	The claimant subsequently had a meeting with the administrators and when he asked where management was he was told that Mr James Johnston, the factory manager, was away on holiday.  

(k)	Approximately one week after the meeting with the administrators a letter was sent to all employees confirming that the company was in administration and that they were dismissed.  

(l)	The tribunal is entirely satisfied that no consultation whatsoever took place with either the claimant or any of the workers prior to the claimant being dismissed.

4.	The law

Article 216 of the Employment Rights (Northern Ireland) Order 1996 provides that where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within the period of 90 days or less the employer shall consult about the dismissals with all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals.  Procedures are set out for electing representatives to meet with the employer to consult over proposed redundancies, where employees are not union members and trade union representation is not appropriate.  If employees, after invitation, fail to elect a representative then Article 216(11A) provides that the employer “shall give to each affected employee the information set out in Paragraph (6)” which includes reasons for proposals, numbers and descriptions of employees whom it is proposed to dismiss as redundant, the total number of employees at the establishment, the proposed selection method, proposed dismissal method and proposed method of calculation of redundancy payments.  

5.	Where an employer has failed to comply with a requirement of Article 216 a complaint may be presented to an industrial tribunal on that ground under Article 217(d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant.  

6.	Article 217(2) states that if the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award ordering the employer to pay remuneration for the protected period as per Article 217(3).  Under Article 217(4) the protected period 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 of the requirements of Article 216 but shall not exceed 90 days.  

7.	In Susie Radin Ltd  v  GMB & Others [2004] IRLR 400 the Court of Appeal in England held that the focus of a protective award is on the default of the employer and its seriousness and that such awards are punitive in nature.  In deciding whether to make a protective award and for what period, Gibson LJ advised tribunals (at Paragraph 45) that:-

“ … a proper approach in a case where there has been no consultation is to start with the maximum period and reduce it only if there are mitigating circumstances justifying a reduction to an extent which the tribunal considers appropriate.”

8.	In Haine & Another  v  Day [2008] EWCA Civ 626 the Court of Appeal in England held that where there is a complete breach of the obligation to consult:-

“The tribunal realistically did not have discretion to refuse an award.  If it had done so, it would have erred in law.”

	In their view, the proper award is for the maximum period permitted by the statute.  

9.	Conclusions

The tribunal is entirely satisfied that no consultation whatsoever took place prior to the dismissal of the claimant by way of redundancy.  In the circumstances of this case where the claimant completed his normal daily work and had returned home before receiving a phone call to inform him that the company had been closed and administrators were in the factory, it is difficult to envisage a more serious breach of the requirements of Article 216.  

10.	The tribunal therefore makes a declaration that the respondent has failed to comply with the requirements of Article 216 insofar as consultation did not take place and the tribunal further considers that a protective award for the full 90 day period should be made.  No mitigating factors have been put before the tribunal.

11.	The tribunal attaches to this decision a list of the 43 employees affected by this decision, including the claimant.

Vice President:

Date and place of hearing:	16 January 2009, Belfast

Date decision recorded in register and issued to parties:

Campbell & Others —V- Regency Spinning Limited in Administration 
Case Reference Numbers 321/08 & Others 

Claimant 
Campbell, Alan 	Case Ref 
 32l/08IT 	Representative 
Donnelly & Kinder Solicitors 	
Halliday, Pauline 	322/08IT 	Donnelly & Kinder Solicitors 	
McCormick, Elizabeth Florence 	323/08IT 	Donnelly & Kinder Solicitors 	
McIlveen, David William 	324/08IT 	Donnelly & Kinder Solicitors 	
Medwell, Gary 	325/08IT 	Donnelly& Kinder Solicitors 	
Mitchell, Daniel 	326/08IT  	Donnelly & Kinder Solicitors 	
Osbourne, Samuel  
Quinn, William James 
Shaw, Aaron Maxwell 	327/08IT 
328/081T 
329/081T 	Donnelly & Kinder Solicitors 
Donnelly & Kinder Solicitors 
Donnelly & Kinder Solicitors 	
Sloan, Kenneth 	330/08lT 	Donnelly & Kinder Solicitors 	
West, David 	331/08IT 	Donnelly & Kinder Solicitors 	
Wilde, Peter 	332/08IT	Donnelly& Kinder Solicitors 	
Vennard, William 
Ritchie, Mark 
Croskery, Steven 	333/08IT 
334/08IT
335/08IT 	Donnelly & Kinder Solicitors 
Donnelly & Kinder Solicitors 
Donnelly & Kinder Solicitors 	
Polloack, David 	336/08IT 	Donnelly& Kinder Solicitors 	
Spratt, Ian 	338/08IT 	Donnelly& Kinder Solicitors 	
Taylor, Gorge 	339/08 IT 	Donnelly & Kinder Solicitors 	
Eadie, Philip Samuel	340/08IT 	Donnelly & Kinder Solicitors 	
Eadie, Dorothy Marie 
Ennis, Jennifer 	34l/08IT 
342/08IT 	Donnelly & Kinder Solicitors 
Donnelly & Kinder Solicitors 
	
Gill, Margaret 	344/08IT          Donnelly & Kinder Solicitors	
Hiles, Mary Jean 	345/08IT 	Donnelly & Kinder Solicitors 	
McConnell, David 	346/08lT 	Donnelly & Kinder Solicitors 	
Brown, Angus Avril 	347/081T 	Donnelly & Kinder Solicitors 	
Alexander, Jennifer 	348/08IT          Donnelly & Kinder Solicitors 	
Brady, Jonathan 	349/08IT	Donnelly & Kinder Solicitors 	
Baxter, George Irvine 	350/08IT 	Donnelly & Kinder Solicitors 	
Baxter, Roy George 	351/08IT 	Donnelly & Kinder Solicitors 	
Brown, Desmond Lewis 	352/08IT 	Donnelly & Kinder Solicitors 	
Baxter, Laura 	153/08IT 	Donnelly & Kinder Solicitors 	
Campbell Ann 	354/08IT 	Donnelly & Kinder Solicitors 	
Brown, David William John 	355/08IT 	Donnelly & Kinder Solicitors 	
Brown Marie 	356/08IT 	Donnelly & Kinder Solicitors 	
Cheevers, Charlene 	 357/08IT	Donnelly & Kinder Solicitors 	
Connor, David 	358/08IT 	Donnelly & Kinder Solicitors 	
Corken, Suzanne 	359/08IT 	Donnelly & Kinder Solicitors 	
Boyd, S J                                               360/081T           Donnelly & Kinder Solicitors 
Boyd R 
Boyd, J 	361/08IT 
362/08IT 	Donnelly & Kinder Solicitors
Donnelly & Kinder Solicitors 	
Boyd, R	363/08IT 	Donnelly & Kinder Solicitors 	
Butler, M 	364/08IT 	Donnelly & Kinder Solicitors 	
Carser, R	365/08IT 	Donnelly & Kinder Solicitors