THE INDUSTRIAL TRIBUNALS

CASE REF:    872/14 and Others

CLAIMANT:           	William McGilligan and Others

RESPONDENT:      KPL Contracts Ltd (In Administration)       

REMEDIES DECISION (ARTICLE 217 DEFAULT JUDGEMENT)
I refer to an Article 217 Default Judgement (Liability Only) which was issued in respect of these cases on 21 October 2014.  The present Decision contains my determinations in respect of remedies in all the cases which were the subject of that 21 October 2014 Judgement (“the liability judgment”).  
Accordingly the present Decision should be read in conjunction with the liability judgment.  The relevant determinations are as follows:
(A)	I have decided to make a protective award in respect of the descriptions of employees who are specified below (“the specified employees”).

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

(C)	The protected period began on 21 February 2014 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 PricewaterhouseCooper LLP
					Waterfront Plaza
					8 Laganbank Road
					BELFAST
					BT1 3LR.

Contribution of Tribunal:	

Employment Judge (sitting alone):	Employment Judge Buggy

Appearances:

The claimants in the listed cases (see below) bearing reference numbers 872/14-880/14 inclusive were represented by Ms M Gavin Solicitor.

The claimants in all of the other listed cases were represented Mr J O’Neill Solicitor.

The respondent was not represented.

REASONS

1.	I refer to the decision of an industrial tribunal in Dempsey and Others v David Patton and Sons (NI) Ltd (In Administration) [Case Ref. No: 947/13 and Others, decision issued on 4 April 2014].  In the present case, I adopt and apply the statements of legal principles which were set out in Dempsey.

2.	This is my remedies decision in respect of all of the complaints which are referred to as “the listed cases” in the liability judgement.  (Such cases are also referred to as “the listed cases” below).

3.	In each of the listed cases, the claimant made a complaint under Article 217 of the Employment Rights (Northern Ireland) Order 1996 (“ERO”).  In essence, in each listed case, the complaint is that, within the context of redundancies which were carried out on 21 February 2014, no collective consultation, of the kind which is envisaged in Article 216 of ERO, took place.

4.	In the liability decision, I decided that each such complaint was well-founded.

5.	Accordingly, as I am obliged to do, I made a declaration to that effect (within the liability judgment).

6.	A remedies hearing was held on 7 November 2014.  This Decision sets out my determinations in respect of remedies in the listed cases.

7.	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, I am sure that the only appropriate determination is that a protective award should be made in the listed cases.  I do make that protective award.

8.	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 took place on 21 February 2014.  Therefore, the commencement date of the protective award is the latter date.

9.	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 the listed cases.  Having done so, I have decided that there will be a protective award of 90 days.  I have no reason to believe that there was any relevant collective consultation.  I also have no information that there were any mitigating circumstances which would justify a reduction in the duration of the protected period.  

The personal scope of the award

10.	I have decided to make a single protective award as a remedy in respect of all of these conjoined listed cases.  In deciding upon the personal scope of that award, I have noted the statements of legal principles which are set out at paragraphs 267-309 of Dempsey and at paragraphs 13-20, and 25-28 of Glendinning v Mivan (No. 1) Ltd (In Administration) [Case Ref. No. 470/14, decision issued during December 2014].  I have applied those principles to the listed cases.

The specified employees

11.	This protective award applies to all of the following descriptions of employees (“the specified employees”):

	(1)	The claimants in all the listed cases.

(2)	All of the other employees of the respondent who have been dismissed (by the respondent) as redundant, or whom it is proposed to dismiss as redundant, at any time from 21 February 2014 onwards.

12.	As I pointed out at paragraph 29 of Glendinning, the practical effect of this decision is to put the employees of the respondent in precisely the same position (no better, although also no worse) as they would have been in if either of the following two situations had existed:

	(1)	If a trade union had had collective bargaining recognition in relation to all of the staff; or

	(2)	if there was no recognised trade union, but a workforce-wide employee forum had existed.

13.	The Department for Employment and Learning (“DELNI”) has the right to participate in a hearing, such as the hearing in this case, and to be treated as though it had been joined as a party to the proceedings.  I was glad that DELNI chose to participate in these proceedings, through the attendance of Mr Peter Curran.  I asked the claimants’ representatives and Mr Curran for views in relation to the proper scope of any protective award.  In summary, the various positions were as follows.  First, both of the representatives of listed claimants were neutral on the question of whether or not the protective award should apply to persons who had not brought Article 217 complaints.  Secondly, in the context of the scope of the protective award, Mr Curran’s comments focused on practicalities rather than principles.  He told me that, if a person was not named within the relevant Article 217 Decision, DELNI might well decide not to make a payment, pursuant to Article 227 of ERO, unless and until that individual had obtained a decision from an industrial tribunal, pursuant to an Article 220 claim. 

Consequential directions

14.	I refer to Regulation 6 of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 [No. 459].  That Regulation provides that, where an industrial tribunal makes a protective award against an employer, that employer is under a legal obligation to give to the Department for Social Development (“DSD”) the following information in writing:

	(1)	The name, address and national insurance number of every employee to whom the award relates, and

	(2)	the date of termination (or proposed termination) of the employment of each such employee.  

	As a general rule, the employer must comply with those obligations within the period of 10 days beginning on the day on which the tribunal’s decision is sent to the parties.

15.	If DELNI makes payments to employees pursuant to this Decision, it will be doing so because payments of remuneration under a protective award constitute a debt to which Article 227 of ERO applies.  In that context, DELNI will hardly need to be reminded of its power to obtain information, pursuant to Article 235 of ERO, from the employer.

16.	In  light of the provisions of Article 235, DELNI may possibly wish to ask the administrator, pursuant to that Article, to provide that Department with a copy of the information which the administrator will in any event be providing (pursuant to Regulation 6 of the Recoupment Regulations) to DSD.

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:  7 November 2014, Belfast.

Date decision recorded in register and issued to the parties:

THE INDUSTRIAL TRIBUNALS

CASE REF:	  872/14 and Others

CLAIMANT:			William McGilligan and Others

RESPONDENT:		KPL Contracts Ltd (In Administration)

ARTICLE 217 DEFAULT JUDGEMENT 
(LIABILITY ONLY) 

1.	This is my decision in respect of the Article 217 complaints in all of the cases which are referred to below.  (In this judgement, those cases are referred to as “the listed cases”).

2.	The respondent is in administration.  The administrators have consented to the presentation of the proceedings in each of the listed cases.  The administrators have stated that they do not contest the proceedings in any of the listed cases.

3.	In each listed case, I consider it to be appropriate to determine the claimant’s Article 217 complaint (the complaint under Article 217 of the Employment Rights (Northern Ireland) Order 1996) without a hearing.  In each listed case, the relevant determination is as follows:

		The claimant’s Article 217 complaint is well-founded.

4.	A remedies hearing, pursuant to this default judgement, will be held in due course.  During the course of that remedies hearing, I will (in respect of each listed case), consider in particular, the following remedies issues:

	(1)	Should a protective award be made?

	(2)	If so, what should the scope of that award be?  (What description, or descriptions, of employees should be within its scope?)

	(3)	How long should the protected period be?

The Listed Cases

               Name of Claimant					Case Ref No

1	McGilligan, William					872/14IT
2	McDonald, Brian					873/14IT
3	Sheppard, Richard					874/14IT
CASE REF:	  872/14 and Others

4	Mooney, Paul					875/14IT
5	Neeson, Jonathan					876/14IT
6	Temple, Andrew					877/14IT
7	Reid, Aidan						878/14IT
8	McGuigan, Kevin					879/14IT
9	McCreesh, Don					880/14IT
10	Butler, Hugh						883/14IT
11	O'Donnell, Mark					884/14IT
12	McBride, Brendan					885/14IT
13	Glasgow, Brian					886/14IT
14	Glasgow, Terence					887/14IT
15	Hunter, Gary						888/14IT
16	McCormick, Jonathan				889/14IT
17	McHugh, Joseph					890/14IT
18	McDowell, Samuel					891/14IT
19	Lynn, Rory						892/14IT
20	McGurk, Michael					893/14IT
21	Nutt, David						894/14IT
22	Dempsey, Eileen					895/14IT
23	Burke, Michael					896/14IT
24	Corr, Brendan					897/14IT
25	O'Hara, Michael					898/14IT
26	Convery, Sean					899/14IT
27	Rogers, Ryan					900/14IT
28	Shirlow, Stanley					901/14IT
29	McCloskey, Aaron					902/14IT
30	McCloskey, Sean					903/14IT
31	Lynch, Martin					904/14IT
32	Burke, Mary						905/14IT
33	McGowan, Lawrence				906/14IT
34	Murphy, Canice					907/14IT
35	Lynch, Conor						908/14IT
36	McGuinness, Paul					909/14IT
37	Cassidy, Sean					910/14IT
38	Murphy, Kevin					911/14IT
39	O'Kane, Dean					912/14IT
40	O'Kane, Rory						913/14IT
41	Doherty, Mark					914/14IT
42	Logue, Jonathan					915/14IT
43	McDowell, Neill					916/14IT
44	O'Kane, Caroline					917/14IT
45	Leake, Niall						918/14IT
46	Strobehn, Sean					919/14IT
47	O'Neill, Lorraine					920/14IT
48	McDaid, Anne					921/14IT
49	O'Kane, Roisin					922/14IT
50	Hawe, Roisin						923/14IT
51	Rafferty, Colette					924/14IT
CASE REF:	  872/14 and Others

52	McBrearty, Noeleen					925/14IT
53	McElwee, Bryan					926/14IT
54	McLaughlin, Martin					927/14IT
55	McCullagh, Anthony					928/14IT
56	McMullan, John					929/14IT
57	Dunne, Fergal					930/14IT
58	Dunne, Joseph					931/14IT
59	McCloskey, Thomas				932/14IT
60	McShane, Steven					933/14IT
61	McAleese, Dean					934/14IT
62	Sherrard, William Nigel John			935/14IT
63	Lynch, Kevin						936/14IT
64	Lynch, Bried						937/14IT
65	Lynch, Conor						938/14IT
66	Duddy, Brian						939/14IT
67	O'Hara, Sean					940/14IT

Employment Judge___________________________________

Date decision entered in register and issued to the parties:

_____________________________________
For Secretary