Dempsey,and others vs David Patton and Sons (NI)
| Jurisdiction | Northern Ireland |
| Judgment Date | 04 April 2014 |
| Respondent | David Patton and Sons (NI) |
| Docket Number | 00947/13IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REFS: 947/13 & Others
CLAIMANT: Dempsey & Others
RESPONDENT: David Patton and Sons (NI) Ltd (In Administration)
DECISION
In each relevant case, the unanimous decision of the tribunal is as follows:
(A) The claimant’s protective award complaint is well-founded.
(B) We have decided to make a protective award in respect of that claimant.
(C) It is ordered that the respondent shall pay remuneration for the protected period.
(D) The protected period began on 9 November 2012 and lasted for 90 days.
The attention of the parties is drawn to the Recoupment Statement at the end of this Decision.
The address of the respondent is C/O Keenan Corporate Finance Ltd, Arthur House, Arthur Street, Belfast, BT1 4GB.
Constitution of Tribunal:
Employment Judge Buggy
Ms L Gilmartin
Mr J Hughes
Appearances:
The claimant was represented by Mr J O’Neill, Solicitor, of Thompsons NI.
The respondent was not represented.
REASONS
1. This Decision applies to all the 107 cases which are listed under the heading “The relevant cases” later in this Decision.
2. In that list, each relevant case is identified by specifying the case reference and the name of the relevant claimant. In this Decision, we refer to each such claimant as a “relevant claimant”.
3. In each relevant case, the respondent is David Patton and Sons (NI) Ltd (“Pattons NI”). Each relevant claimant was dismissed by reason of redundancy, on or after 9 November 2012.
4. Each of the relevant claimants is represented by the same solicitors (Thompsons NI).
5. Pattons NI is in administration. In each relevant case, the administrator has consented to the bringing of the relevant complaint.
The complaints
6. Article 216 of the Employment Rights (Northern Ireland) Order (“ERO”) imposes a duty upon an employer, in some situations, to collectively consult with representatives of all or part of its workforce. Article 216A of ERO imposes requirements in relation to the election of such representatives.
7. Article 217 provides for the making of complaints to a tribunal in respect of failures to comply with Article 216 and/or Article 216A.
8. In each relevant case, the claimant makes an Article 217 complaint.
9. In each of the relevant cases, the claimant complains of breaches of the requirements of Article 216 and Article 216A of ERO. In each instance, the claimant asks the tribunal to make a protective award, in respect of himself/herself. In the Dempsey case (947/13), the statement of the claimant’s complaint, and the response of the respondent in that case, are typical of the statements of case and responses in all of the applicable cases.
10. The statement of case in the Dempsey case (as set out at paragraph 7.4 of the claim form) was as follows:
“(1) I was an employee of David Patton and Sons until my dismissal by way of redundancy ... I understand that the total number of persons made redundant was in excess of 192.
(2) I have recently been informed that ex-colleagues who are members of the UCATT trade union were awarded a Protective Award of 90 days pay by the Industrial Tribunal ... because of the employer’s failure to collectively consult about the redundancies.
(3) ...
(4) I was asked to attend a meeting ... with the administrators (who I understand had been appointed on or about 6 November 2012). At that meeting I was told I was to be made redundant with immediate effect. I was given an RP1 form to complete in order to claim payments including a statutory redundancy payment from the Redundancy Payments section of the Department of Employment and Learning. I completed this form at this meeting.
(5) In the absence of a recognised trade union, my employer did not take any steps to seek to have employee representatives elected or appointed for the purposes of consultation about the redundancies and no such consultation took place with any group of any sort representing myself and the other employees who were made redundant.
(6) In light of the respondent’s failure to comply with its consultation obligations under [ERO] [I, alongside other claimants], under Article 217 of the above Order, seek a declaration that the Respondent has failed to comply with its duties under Article 216 and 216A of the above Order and seek a protective award.
(7) ...
(8) While I now understand that this claim should have been brought within 3 months of my dismissal, I would ask that my claim be allowed to proceed on the basis that it was not reasonably practicable for me to present the claim in time. As I was unaware of my right to bring any such claim I could not reasonably have been expected to be aware of this right.”
11. The response of the respondent in the Dempsey case was as follows:
“I was appointed Administrator of the Company on the 6th November 2012. Upon my appointment as Administrator I decided to continue to trade the Company for a limited period to enable me to form a view on the longer term viability of the business and with a view to maximising the value of realisations for the benefit of creditors, which is one of the statutory purposes of Administration. This initially included continuing the Company’s employment of its employees in order to assist me in managing the day to day running of the business. However, due to financial constraints, it became apparent to me that significant redundancies would be required within a short time scale. There were various dates of redundancies from 9th November 2012 onwards.
All ex-Company employees that were made redundant received their accrued wages, in the normal manner. The employees also completed and returned their RP1 forms, to claim for statutory redundancy pay, notice pay and accrued holiday pay from the Redundancy Payments Service (“RPS”).
In relation to the Claimant’s claim for a protective award, it is denied. Due to the poor financial position and the significant workforce of the Company, it was not reasonably practicable for the Company post Administration to comply with the duty to inform and consult. The Company had to make significant redundancies almost immediately after my appointment, as the Company was unable to finance the on-going payroll cost. As Administrator I contend on behalf of the Company post Administration that this amounted to special circumstances rendering it not reasonably practicable to comply with the requirements to inform and consult.
In providing consent to the employee(s) to present claims to the Tribunal for protective awards I am making no comment or concession as to whether such claims have been brought within the 3 months provided for under the Employment Rights (NI) Order 1996 or whether it would be appropriate for the Tribunal to extend the period for service of a claim if it has not been presented within the 3 month time period. These are issues that the Industrial Tribunal will have to determine in deciding whether it has jurisdiction to hear the complaint(s).”
The previous litigation
12. Redundancy dismissals by Pattons NI, which occurred on or after 9 November 2012, have previously been the subject of other Article 217 complaints. Those previous complaints resulted in two separate decisions:
(1) Adamson and Others v David Patton and Sons (NI) Ltd (in administration) (case reference 291/13 and Others) and
(2) Johnston v David Patton and Sons (NI) Ltd (in administration) (case reference 108/13).
13. The Adamson Decision related to Article 217 complaints which were brought by 34 individual employees. The Decision in that case was issued on 31 May 2013. That Decision is mentioned at paragraph (2) of the statement of complaint in the Dempsey case (see paragraph 10 above).
14. Johnston was a case which was brought by a single individual employee. The Decision in that case was issued on 6 August 2013.
15. In both the Adamson and Johnston cases, the relevant tribunal concluded...
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