THE INDUSTRIAL TRIBUNALS

CASE REF:	481/13

CLAIMANT:			Marie Coulter

RESPONDENT:		Commercial Graphics (NI) Ltd (in administration)

DECISION 
(A)	It is declared that the claimant’s complaint is well-founded.
(B)	I have decided to make a protective award in respect of the claimant.  
(C)	It is ordered that the respondent shall pay remuneration for the protected period.
(D)	The protected period began on 17 August 2012 and lasted for 90 days.

Constitution of Tribunal:
Chairman (sitting alone):		Mr Buggy
Appearances:
The claimant was self-represented.

The respondent was not represented.

REASONS

1.	The administrators of the respondent have given permission for the pursuit of this complaint, which is not contested by the respondent.  

2.	Article 216 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) imposes collective consultation duties in the context of redundancies.  

3.	This is my Decision in respect of a complaint which the claimant has brought under Article 217 of the Order.  (According to that complaint, the respondent has failed to comply with the requirements of Article 216).

4.	In August 2012, the employees of the respondent, who worked at a single site in Northern Ireland, were informed that the business was closing down the following day.  Around that time, approximately 30 employees, including the claimant, were working in that location.  All of them were made redundant.  

5.	A trade union was recognised by the respondent, for collective bargaining purposes, in respect of all of the staff of the respondent, other than office and administrative staff.  The claimant was employed within the office and administrative staff.  Accordingly, she was working in a part of the business in respect of which no trade union was recognised for collective bargaining purposes.  I am satisfied that no relevant staff forum had been established in relation to the administrative or office staff.  

6.	As a result of the claimant’s oral testimony in this case, and having had regard to the documents which been brought to my attention in this case, I am satisfied that no significant collective consultation, of the type which is envisaged in Article 216 of the Order, was carried in respect of the closure of the respondent’s business at the relevant work location.  

7.	In this case, I have applied the principles which were set out by the English Court of Appeal at paragraphs 61-67 of the judgment in Haine v Secretary of State for Business Enterprise and Regulatory Reform and Another [2008] EWCA Civ 626.  

8.	As the court in Haine highlighted (at paragraph 61 of its judgment), in a case where there has been no consultation, the proper approach is to start with the maximum period of 90 days, and to reduce it only if there are mitigating circumstances justifying a reduction.

9.	I am unaware of any mitigating circumstances which would justify a reduction in this case.

10.	The Article 216 obligation to consult is not an absolute obligation.  If there are any “special circumstances,” which render it impracticable for the employer to comply with the relevant statutory obligations in full, then it is sufficient that the employer does what is reasonably practicable, in those circumstances, towards full compliance.  However, Article 217(6) of the Order imposes the onus of establishing whether there are “special circumstances” upon the employer.  In this case, the employer has not discharged that onus.

11.  	The business closed on 17 August 2012.  These proceedings were not commenced until 5 March 2013, nearly seven months later.  Accordingly, the primary time-limit, as set out in paragraph (5) of Article 217 of the Order, has not been met in this case.  That paragraph provides for a primary time-limit of three months beginning on the date on which the last of the relevant dismissals (the dismissals to which the complaint relates) takes effect.

12.	In this case, that primary limitation period expired on 17 November 2012.  Article 217 provides for a secondary time-limit, if the primary time-limit is not met.  According to Article 217(5), the secondary time-limit is only applicable if I am satisfied that it was not reasonably practicable for the complaint to be presented during the primary time-limit.  

13.	Having carefully considered the sworn oral testimony of the claimant in this case, I am sure that the only reason why she did not present her claim within the primary time-limit was her ignorance, through that period, as to her entitlements in relation to making a protective award complaint.  

14.	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.  

15.	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 making a complaint of unfair dismissal is not a reasonable ignorance.  This is on the basis that the general public are now well aware of entitlements to make unfair dismissal complaints.  

16.	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.  

17.	Accordingly, I am satisfied that the claimant’s ignorance as to her entitlements in relation to making a protective award complaint was reasonable ignorance. 

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

19.	The remaining time-limit issue (the secondary time-limit issue) is whether or not these proceedings have been brought within such further period as I consider being reasonable.  On balance, I do consider that “further” period to be reasonable, in the circumstances of this case.  In this instance, the “further period” lasted for less than four months.  The reality, in the present case, is that any payments made pursuant to this award would be made by the Department for Employment and Learning, and it is unlikely that the Department will be financially embarrassed by the claimant’s delay in making the protective award complaint (as distinct from being financially embarrassed by the making of the complaint at all).  

20.	The address of the respondent is c/o Stephen Cave, Price Waterhouse Coopers LLP, Waterfront Plaza, 8 Laganbank Road, Belfast BT1 3LR.  

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

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 for 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 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:  30 May 2013, Belfast.		

Date decision recorded in register and issued to parties: