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THE
INDUSTRIAL TRIBUNALS
CASE REF: 939 – 964/08
CLAIMANTS: 1.
RICHARD KENNETH PRINGLE 939/08
2.
ANNE PATRICIA ALEXANDER 940/08
3.
NICOLA ELLEN McVEIGH 941/08
4.
SHARLENE LOWRY 942/08
5.
IAN ROBERT CRANGLE 943/08
6.
SARAH ELIZABETH WASHINGTON 944/08
7.
MARTINA PATRICIA SHIRRA 945/08
8.
EDITHA WOOD 946/08
9.
MAC FOO 947/08
10.
CHRISTINE HEARD 948/08
11.
MAURA ALLEN 950/08
12.
SARAH WAKE 952/08
13.
JILL SHERRY 953/08
14.
MARGARET O’HARA 954/08
15.
FIONA MORRIS 955/08
16.
EMMA McALLISTER 956/08
17.
MARY THERESA MALONE 957/08
18.
PAULINE LUNDY 958/08
19.
FIONNUALA ANN LENNON 959/08
20.
VIVIENNE HUNTER 960/08
21.
SHARON HANLEY 961/08
22.
PAULINE CONNOLLY 962/08
23.
JUNE CLARKE 963/08
24.
WENDY BLACK 964/08
RESPONDENT: BALMORAL CLINIC (IN
ADMINISTRATION)
DECISION
The
unanimous decision of the tribunal is that each and every one of the
above claims made under Article 217 of the Employment Rights
(Northern Ireland) Order 1996 is well founded. The tribunal makes a
protective award for the period of 90 days from 4 April 2008 in
respect of each of the above named claimants.
Constitution
of Tribunal:
Chairman:
Mrs Watson
Panel
Members: Ms McReynolds
Mr Burnside
Appearances:
The claimants numbered 1 to 10 above
(inclusive) were represented by Mr Guerin of Campbell Fitzpatrick,
Solicitors. The claimants numbered 11 to 24 above (inclusive) were
represented by Mr O’Neill of Thompson’s McClure,
Solicitors.
The respondent did not appear and was
not represented.
THE ISSUES
The first issue for the consideration
of the tribunal related to an application by Mr O’Neill to
amend the originating applications of the following claimants;
No. 11. Maura Allen (CRN 950/08)
No.
13. Jill Sherry (CRN 953/08)
No. 19. Fionnuala Ann Lennon (CRN
959/08)
No.
21. Sharon Hanley (CRN 961/08)
No. 23. June Clarke (CRN 963/08)
No.
24. Wendy Black (CRN 964/08)
Due
to an administrative oversight for which he apologised, Mr O’Neill
advised the tribunal that the date of termination given by each of
these claimants in their originating claim form was wrong. These
claimants had mistakenly given the date relating to their last
payment. The tribunal heard oral evidence on this point from
Fionnuala Ann Lennon who referred the tribunal to a copy of a letter
she and all other claimants received from the administrator which
stated that the date of termination was 4 April 2008. The tribunal
was satisfied that it was common cause between the parties that this
was the correct date in respect of each and every termination and
allowed the amendments as requested to reflect the correct date
where applicable.
The
tribunal next sought to determine whether the respondent had
complied with the duties imposed on employers by the Employment
Rights (Northern Ireland) Order 1996 when redundancies are proposed.
THE LAW
Employers
are required by Article 126 to consult employee representatives, or
where there is no recognised trade union representatives, the
employer should appoint representatives, to receive information and
be consulted about the proposed dismissals.
EVIDENCE
The tribunal heard evidence and were
satisfied that the employers in this case had failed to inform their
employees in any way about any of the problems that existed or any
possible threat to the continuation of their employment. Any
information received by each and every one of the claimants in these
cases came from other colleagues.
FINDINGS OF FACT
On or about 21 December 2007, the
respondent company ceased trading. Members of staff who were on duty
that day made contact with the rest of the staff and informed them
that they would continue to be paid but were not required to attend
work.
One of the respondent’s Medical
Directors, Brian Page, attended two meetings with staff, on 22
February 2008 and 21 March 2008. Both meetings were called by the
staff through their Trade Unions representatives. The respondent did
not formally recognise either Trade Union.
Despite an assurance by Mr Page at
the March meeting that staff would be issued with protective notice,
no such action was taken by the respondent.
By
letter dated 4 April 2008 from John Hansen of KPMG, each and every
claimant was notified that their employment was terminated with
effect from the date of the letter and that Mr Hansen had been
appointed Administrator.
CONCLUSIONS
The
tribunal was satisfied by the oral and documentary evidence
presented that the respondent did not comply in any respect with the
duties imposed on it under Articles 216 to 226 of the 1996 Order
(as amended) and makes a declaration that the claims of each and
every one of the above named claimants is well founded.
Since
the respondent did not comply with the statutory requirements and
did not satisfy the tribunal that there was any reason for that
failure, the tribunal was satisfied that a protective award should
be made. In determining the appropriate award, the tribunal took
into account the seriousness of the respondent’s default of
its statutory duties. The Court of Appeal in England in Susie
Radin Ltd v GMB & Ors [2004] IRLR 400
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.”
This
view has been endorsed recently by the decision in the case of Haine
& another v Day [2008] EWCA Civ 626 where
the Court of Appeal 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.
Accordingly,
the tribunal makes a protective award for the period of 90 days from
4 April 2008 in respect of each of the claimants in these cases.
The
provisions of the Employment Protection (Recoupment of Jobseekers
Allowance & Income Support ) Regulations (Northern Ireland) 1996
apply.
Chairman:
Date
and place of hearing: 8 December 2008 at Belfast
Date
decision recorded in register and issued to parties:
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