THE INDUSTRIAL TRIBUNALS

CASE REF: 	408/14

CLAIMANT:			Unite the Union

RESPONDENT:		Fortress Doors (NI) Ltd
(in Company Voluntary Liquidation)

	
DECISION (PROTECTIVE AWARD)  

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

(B)	I have decided to make a protective award in respect of all of the employees of the respondent who were dismissed by reason of redundancy on or about 19 December 2013.

(C)	It is ordered that the respondent shall pay remuneration for the protected period.

(D)	The protected period began on 19 December 2013 and lasted for 90 days.

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

The address of the respondent is: 

	C/o Pitman Cohen Recoveries LLP
	St Martin’s House
	The Runway
	South Ruislip 
	Middlesex
	HA4  6SG

Constitution of the Tribunal:

Employment Judge (sitting alone):	Employment Judge Buggy 

Appearances:

The claimant was represented by Mr C McGlone, Solicitor, of Donnelly & Kinder, Solicitors.

The respondent was debarred from participating in the proceedings, because no response had been presented on behalf of the respondent.

REASONS

1.	I refer to the decision of a full tribunal in Dempsey & Others  v  David Patton & Sons (NI) Ltd (In Administration) [Case Reference No:  947/13 & Others, Decision issued on 4 April 2014).  I adopt and apply the statement of issues, and the statement of legal principles, as set out in Dempsey.

2.	Mr David Stewart, one of the Fortress staff who were dismissed in December 2013, provided sworn testimony in these proceedings.  I was satisfied, on the basis of that testimony, that the account of the facts which is set out in the claimant’s claim form is accurate.  Mr McGlone had prepared a very clear and helpful written submission in this case. 

3.	I am satisfied that 21 employees of the respondent were dismissed by reason of redundancy on 19 December 2013.  

4.	I am satisfied that no efforts were made, by or on behalf of the respondent, in connection with those dismissals, to comply with the duties which are imposed by Article 216 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”).  

5.	I am satisfied that  the claimant, Unite the trade union (“Unite”), was recognised by the respondent for collective bargaining purposes, in respect of a description of  the respondent’s staff which included all of the staff of the respondent who were made redundant in December 2013.  I am satisfied that, prior to making the relevant dismissals, the respondent had not made any attempt at consultation with Unite about the dismissals.  

6.	Paragraph (6) of Article 217 provides as follows:

		“(6)	If on a complaint under this Article a question arises –

(a)	whether there were special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of Article 216, or

(b)	whether he took all such steps towards compliance with that requirement as were reasonably practicable in those circumstances, it is for the employer to show that there were and that he did”.

7.	On the basis of the evidence which I have received in this case, it is clear to me that no worthwhile consultation was carried out with any worker’s representative, in connection with the relevant dismissals.  The employer has not shown that there were any special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of Article 216.  In any event, the employer has not shown that it took such steps, towards Article 216 compliance, as were practicable.

8.	Against that background, and for those reasons, no special circumstances/ reasonably practicable defence has been established, in the circumstances of this case.

9.	I find the claimant’s Article 217 complaint to be well-founded.  Accordingly, as I am obliged to do, I make a declaration to that effect.  

10.	I refer in particular to the statement of the law which is set out at paragraphs 75 – 80 of Dempsey.  In light of the principles which were explained in Haine  v  Day [2008] IRLR 642, as quoted at paragraphs 78 – 80 of Dempsey, and in light of the factual circumstances of this complaint, I am sure that the only appropriate determination is that a protective award should be made in this case.  I have made that protective award.  

11.	The commencement date of this protective award is the date on which “ ... the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier”.  (See Article 217(4) of ERO).  The earliest of the relevant dismissals (the dismissals to which this complaint relates) took effect on 19 December 2013.  Therefore, the commencement date of the protective award is 19 December 2013.  

12.	In considering the duration of the protective award, I have noted the statements of principle which are set out at paragraphs 84 – 86 of Dempsey.  I have applied those principles in light of the facts of this case.  Having done so, I have decided that there will be a protective award of 90 days.  

Recoupment Statement

(1)	In the context of this Notice: 

(a)	‘the relevant benefits’ are jobseeker’s allowance, income support and income-related employment and support allowance; and

(b)	any reference to ‘the Regulations’ is a reference to the Employment Protection (Recoupment of allowance and Income Support) Regulations (Northern Ireland) 1996 (as amended).

(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 termination of employment).  That is a requirement of regulation 6 of the Regulations.

(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 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.  

Employment Judge

Date and place of hearing:	11 June 2014, Belfast

Date decision recorded in register and issued to parties: