THE INDUSTRIAL TRIBUNALS

CASE REFS:   2087/12
2088/12
2089/12
2090/12
2091/12
2092/12
2197/12

CLAIMANTS:	1.	Elaine Frances Dobson
			2.	Stephanie Steenson
			3.	Helen McAuley
			4.	Christina Bond
			5.	Linda Jacqueline Annett
			6.	Lena Doris Kelly
			7.	Nicola Sands		

RESPONDENTS:	1.	David and Ruth Coates 
			2.	Philip Martin
			3.	Elizabeth Anderson

DECISION ON AN APPLICATION FOR REVIEW

The decision of the tribunal is that the application for review by the second and third named respondents is refused for the reasons set out below.  The application for review by the first named respondents is refused for the reasons set out below.  

Constitution of Tribunal:

Employment Judge:	Employment Judge McCaffrey

Members:	Mr D Walls
	Mrs L Hutchinson

Appearances:

1.	This was an application for review of a decision of the tribunal issued in this matter on 2 April 2015.  There were two applications for review, one by the first named respondents and another by the second and third named respondents.  Both indicated that they were on the grounds set out in Rule 34(3)(e) of The Industrial Tribunal Rules of Procedure 2005, namely that the interests of justice required such a review.  

The application by the second and third named respondents

2.	The second and third named respondents had sent a written submission to the Office of the Industrial Tribunals by email on 16 April 2015 requesting a review.  The statement of their case was summed up in one paragraph which was as follows:

“Due to a number of non disclosures and misrepresentations (which can be evidence by information contained within the bundle) by the first respondents we would ask the court to consider that the contract is in fact void ab initio and therefore not worth the paper it is written on, allowing the second and third respondents the remedy of recession and no liability for any such claims under TUPE.”

3.	Effectively this was a restatement of an argument put forward by the second and third respondents at the hearing.  The contract referred to by the second named respondent was the contract for sale of the nursery business from the first named respondent to the second and third named respondents.  This point was already covered by the decision of the Industrial Tribunal at paragraph 2.  

4.	On the day fixed for hearing of the review application, the second and third named respondents did not attend.  The panel considered the application in the absence of the second and third named respondents.  We did not hear any submissions from the claimants or from the first named respondents in relation to this issue.  We considered that the application made by the second and third named respondents raised nothing that was new or which had not already been addressed in the original decision and therefore the application for review was refused.  For the avoidance of doubt, we refer the parties to the reasons set out in paragraph 2 of the original decision for not considering the status of the contract.  

The application for review by the first named respondents

5.	Mr Moore appeared for the first named respondents and effectively sought a review of the decision of the tribunal to order the first named respondents to pay the claimants each the sum of five weeks’ pay in respect of their failure to comply with the consultation requirements under Regulations 13 to 15 of the TUPE Regulations 2006.  The case made by Mr Moore that at paragraph 48 of the decision it was stated 

“There were failures by both transferor and transferee as regards the consultation but we consider the failure by the transferor was greater.”  

He suggested that the first respondents were entitled to know how the tribunal had arrived at that view, given that they alleged consultations had been held both collectively and individually with the staff prior to the transfer, that the first respondents had met with staff individually and collectively and that there were no measures applicable to the staff on transfer except the change of management.  He suggested that the actions of the first respondents as regards consultation could not be equated with, let alone be considered greater than, the actions of the second and third respondents.  He also suggested that having elected employee representatives would not have made any difference whatsoever to the consultation process or the information provided to the claimant. 

6.	The third comment made by him in relation to the calculation of the award due to Mrs Helen McAuley was withdrawn.

7.	The claimants objected to the application for review and referred to the findings in the decision that consultation had been primarily at the instigation of the staff, rather than on the initiative of the first respondents and that indeed some of the information given had been only to some of the staff, not all.  They were also of the view that when Mrs Copes arrived on 10 August to advise staff of the proposed transfer,  staff were surprised and shocked with that the business was to change the following Monday.  Mrs Bond, on behalf of the claimants, also noted that it was speculation to say that failure to elect representatives would not have made any difference to the outcome.  It was the claimants’ view that if the first respondent had made himself aware of his duties as an employer under the TUPE regulations, he may well have been more aware of his responsibilities to keep staff informed, and to consult them.

Decision

8.	Mr Moore made the comment on the course of his submissions that if there had been only two fewer employees in this claim, there would have been no requirement to consult under the rules relating to “micro businesses” and the Transfer of Undertakings Regulations.  We were not clear that the rules in relation to micro businesses apply in Northern Ireland, but in any event that rule would not apply in this case because of the number of employees and there was an obligation to consult under TUPE. 

9.	We refer to the decision already given in this case and in particular the facts found at paragraphs 8 and 9 of the decision, that the consultation which took place was partial and very much at the initiative of the claimants.  This is contrary to the requirements under Regulations 13 to 15 of the TUPE Regulations 2006.  Regulation 13 puts the responsibility squarely on the transferor employer to consult with the representatives of the affected employees regarding the measures it envisages the transferee will take in connection with the transfer to its employees; that consultation should also be meaningful.  There is also an obligation on the part of the employer to facilitate the election of an employee representative under Regulation 14, and the first named respondents failed completely in that obligation.

10.	All of this is set out at paragraphs 46 to 48 of the decision where we clearly indicated why we considered that the onus of consultation on the first named respondents was greater than the second and third named respondents: they (the first named respondents) had the responsibility to facilitate election of staff representatives which they failed to do.  The award made against the first named respondents was for two more weeks’ pay to take account of the failure to facilitate election of staff representatives.

11.	The maximum award for failure to consult under Regulations 13 and 14 of the 2006 Regulations is such sum as the tribunal considers just and equitable, not exceeding 13 weeks’ pay.  We consider that an award of five weeks’ pay against the first named respondent for failing to consult takes account of the consultation which did occur and is just and equitable in all the circumstances, including their failure to facilitate election of employer representatives.  For these reasons the application for review is refused.

Employment Judge:       

Date and place of hearing:  2 June 2015, Belfast		

Date decision recorded in register and issued to parties: