THE INDUSTRIAL TRIBUNALS

CASE REFS:  03572/09
		& Others

CLAIMANTS:		Woodside & Others

1.	 Robert Brown			CRN: 5125/09
2.	 Gary James Burton		CRN: 4080/09
3.	 Andrew Graham Croskery 	CRN: 4079/09
4.	 Stephen Samuel Edwards	CRN: 4077/09
5.	 Samuel Joseph Gurnett		CRN: 4084/09
6.	 Denese Johnston			CRN: 3995/09
7.	 Stephen Large 			CRN: 4050/09
8.	 Samuel Maghie			CRN: 5219/09
9.	 John Simpson McBratney	CRN: 3841/09
10.	 Stuart Samuel McCormick	CRN: 4081/09
11.	 Steven Findlay McQueen		CRN: 4078/09
12.	 June Neill				CRN: 4082/09
13.	 Samuel Kerr Patterson		CRN: 4083/09
14.	 Ronald Savage 			CRN: 4054/09
15.	 Adrian Woodside			CRN: 3572/09
16.	 Thomas Lyons			CRN: 5727/09
17.	 Carol McKee 			CRN: 5854/09
18.	 Stephen Savage 			CRN: 5737/09

RESPONDENT:	Regency Spinning Ltd (In administration)

DECISION
The unanimous decision of the tribunal is that the respondent failed to comply with the requirements of Article 216 and Article 216A 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:	
Chairman:		Miss W A Crooke
Members:		Mr W Irvine
			Mr P McKenna

Appearances:

CLAIMANTS BY:	With the exception of Ms Carol McKee, Mr Stephen Savage, Mr Adrian Woodside, Mr Ronald Savage, and Ms Denese Johnston, all the claimants appeared in person and represented themselves. 

RESPONDENT BY:	The respondent and the administrator did not appear, nor were they represented. 

The Department of Employment and Learning was notified of the hearing date, but did not attend. 

The Sources of Evidence

1.	All the claimants with the exceptions noted above gave evidence on their own behalf.  

The Claim and the Defence 

2.	The claims of the claimants were for a payment of a ninety days protective award. The respondent did not enter any response to any of the claims. 

Legal Issues 

3.	The issues for the tribunal are: 

(1)	Whether the respondent complied with the requirements of Article 216 and Article 216A of the Employment Rights (Northern Ireland) Order 1996 and if so 

(2)	to determine the appropriate period for a protective award and 
(3)	in accordance with Article 217(5)(c) is the tribunal satisfied that it was not reasonably practicable for any of the complaints to be presented during the period of three months set down in Article 217(5)(b) and if it is so satisfied, were the complaints brought within such further period as the tribunal considers reasonable. 
The Facts
4.	Having heard from the majority of the claimants involved in this case, the tribunal is satisfied of the following facts on a balance of probabilities:-
(1)		All the claimants were employed by the respondent in varying capacities,
and although the respondent had been operating a three-day week for approximately nine months before the termination of the employment of the claimants in this case, the redundancy situation which first came to the claimant’s notice on 8 December 2007 was a total shock. 
(2)	None of the claimants were members of any trade union at all. 
(3)	It was common case between the claimants that the respondent had not notified them of any impending redundancy situation and some only became aware of this when the director of the company Mr Gibson attended at the respondent company on 8 November 2007 and indicated that the administrators of the company were coming in that day. Some employees were left to find out about this through reports on the television and radio.
(4)	Some employees were effectively imprisoned in the respondent’s premises on 8 November 2007 and forced to complete forms provided by the administrators on that day without recourse to any advice from any source whatsoever. Some employees asked the administrators whether this would cover all their entitlements and were told that it would. 
(5)	Other employees were required to attend at the company the following Tuesday 13 November 2007 and to fill out their forms on a similar basis to the situation that faced the employees who were imprisoned in the respondent premises on 8 November 2007. 
(6)	The tribunal is entirely satisfied that no consultation whatever took place with any of these claimants prior to the claimants being dismissed. 
(7)	It was common case amongst all the claimants that a hundred people or more were dismissed at the same time as each of them. 
(8)	The majority of the claimants considered that there had been a climate of hostility and intimidation in the respondent company in and around 8 November 2007 and this continued on in the days that followed. Those of the claimants who were employed as supervisors, administrators or management were challenged by workers in the company to explain why they had not given early notice of the situation. These workers felt that this group of employees could have done more to assist the various unions involved.  In fact these staff members were not members of any union and were barred from meetings of unions and from receiving any assistance whatsoever.  In the case of Mr Large this antagonism continued after the redundancy.  He had threats made against him on his mobile phone which made him feel very afraid, to the extent that he deliberately avoided places where he would have met other former fellow employees.  This was also the case for Miss Denese Johnston and Mr Stuart McCormick and Mr Ron Savage. 
(9)	All of the claimants suffered feelings of deep shock and a number of them indicated that they had medical conditions that were exacerbated as a result of the redundancy situation and the events surrounding it.  Some of the employees were so ill that they were not able to work for a number of months after the redundancy situation. 
(10)	A significant body of the claimants indicated that they were in receipt of ongoing correspondence from the administrators and as a result they had believed that their entitlement to a ninety day protective award would have come through sooner or later, as all their other claims had been dealt with. 
(11)	A further group of the claimants had all suffered the misfortune of being made redundant in other carpet factories in or around 2003. Their experience was that all claims (including the right to ninety day protective award) were dealt with on behalf of the employees by the administrators.  One employee was even assured by a representative of the administrators that his full entitlement would be dealt with by way of the form the employees were required to fill in. 
(12)	Even whenever some claimants did not suffer outright intimidation and threats, they were still made to feel uncomfortable by jibes allegedly spoken in jest that they received from fellow workers.  The tribunal is satisfied that there would have been virtually no chance of knowledge of the entitlement to ninety days protective award coming through to the body of claimants covered in this decision from the employees who were covered by union representation. The tribunal is also satisfied that insofar as this body of claimants knew that they had a right to this payment, they had understood from the administrators that it would come through. 
(13)	It was only when news of a decision in the case of Alan Campbell v Regency Spinning Ltd (in administration) and Christopher Ratten and Jeremy Woodside of Tenon Limited Trading as Tenon Recovery Joint Administrators of Regency Spinning Ltd Case Ref:321/08 became available that the body of claimants covered by this decision realised that they might have a similar entitlement, that it was not going to come through to them automatically as the majority of them had been led to believe and accordingly presented their claims to the industrial tribunal. 
The Law
5.	Article 216 of the Employment Rights (Northern Ireland) Order 1996 provides that where an employer is proposing to dismiss as redundant twenty or more employees at one establishment within the period of ninety 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 in Article 216A of the same Order 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.  
6.	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 that ground under Article 217(1)(a) in any other case by any of the affected employees or by any of the employees who have been dismissed as redundant.  
7.	Article 217(2) states that if a tribunal finds a 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(4).  Under Article 217(4) the protected period is of such length as a 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 ninety days. 
8.	Under Article 217(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 is not reasonably practicable for the complaint to be presented during that period of three months. 
9.	The tribunal had before it a letter faxed to it from Tenon Recovery via Donnelly Kinder, Solicitors (who were on record for the claimants in the case of Alan Campbell v Regency Spinning Ltd (in administration) and Christopher Ratten and Jeremy Woodside of Tenon Limited Trading as Tenon Recovery as joint administrators of Regency Spinning Ltd.  In this letter, Jeremy Woodside, for and on behalf of Regency Spinning Ltd stated that it was not his intention to be represented in future at any future tribunal hearing. The tribunal interpreted this as a consent by the administrator to these proceedings. 
Conclusions
10.	The tribunal considers that it is hard to imagine a more serious breach of the requirements of Article 216 than has arisen in the circumstances outlined in this decision. The tribunal readily accepts that the manner in which the redundancy took place did come as a total shock to the body of claimants covered by this decision.  On 8 November 2007 some were told that the administrators were coming in.  Some had to rely on telephone calls from fellow workers.  Some had to rely on television and radio for the news. 
11.	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. The right to consultation arises with appropriate representatives. As it was common case amongst the claimants that there were no general employee representatives elected in the company, then the employer had no choice. He should have organised the election of special representatives, or at least have attempted to do so by inviting the affected employers to elect their representatives. Plainly, no such election was held. Such representatives should have been elected early enough to enable them to have been in place by the time the statutory consultations were due to begin.  This is not a case in which the affected employees were slow in electing their representatives.  As the employer has failed totally to elect the representatives, he is in breach of his statutory duty to consult. 
12.	None of the claimants have brought their claims within the periods set down in Article 217(5) which we have set out above. The tribunal considers that in the climate of confusion, fear, intimidation and stress that these employees were variously subjected to, it would not have been reasonably practicable for them to bring their claims within the three month period set out in Article 217 (5) of the 1996 Order.  In most circumstances, it was only when employees found out that the employees who were covered by union representatives had brought the case of Alan Campbell against the respondent case ref:321/08, that they realised that this payment was not going to come through automatically. The reason for this was due to confusion caused by the administrators, whom one claimant described as operating a “shambolic process”. Some of the older employees were not able to bring their claims any earlier (additionally) for health reasons.
13.	Unanimously the tribunal finds that the claims of this body of claimants, were brought within a reasonable period after the issue of the Campbell decision. 
14.	No mitigating factors were put before the tribunal on behalf of the respondent or the administrators. 
15.	The tribunal attaches to this decision a list of the employees affected by this decision and declares that they are entitled to the full ninety day payment.  
16.	This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990. 

Chairman:

Date and place of hearing:	18 August 2009, Belfast.

Date decision recorded in register and issued to parties: 

Claimant 	Daily Rate X 90 =	
Robert Brown 			£46.75 X 90 =  £4207.50	
Gary James Burton	£50.00 X 90 =  £4500.00	
Andrew Graham Croskery	£46.68 X 90 =  £4201.20	
Stephen Samuel Edwards	£47.18 X 90 =  £4246.20	
Samuel Joseph Gurnett	£63.80 X 90 =  £5742.00	
Denese Johnston	£52.24 X 90 =  £4701.60	
Stephen Large 		£106.15 X 90 = £9553.50	
Samuel Maghie		£42.02 X 90 =  £3781.80	
John Simpson McBratney	£49.69 X 90 =  £4472.10	
Stuart Samuel McCormick	£63.18 X 90 =  £5686.20	
Steven Findlay McQueen	£70.50 X 90 =  £6345.00	
June Neill		£52.07 X 90 =  £4686.30	
Samuel Kerr Patterson	£40.16 X 90 =  £3614.40	
Ronald Savage	£67.98 X 90 =  £6118.20	
Adrian Woodside	£68.60 X 90 =  £6174.00	
Thomas Lyons		£60.76 X 90 =  £5468.40	
Carol McKee 		£47.60 X 90 =  £4284.00	
Stephen Savage	£40.00 X 90 =  £3600.00