Mr T Savory and others v South Western Ambulance Service NHS Foundation Trust and Vocare Ltd: 1400119/2016

Case No. 1400119/2016 and 58 others 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondents Mr T Savory and 58 Others AND South Western Ambulance Service NHS Foundation Trust (1) Vocare Limited (2) JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD AT Exeter ON 24 May 2017 EMPLOYMENT JUDGE N J Roper Representation For the Claimants: Mr J Duffy of Counsel For the First Respondent: Mr T Pitt-Payne of Counsel For the Second Respondent: Mr M Fodder of Counsel RESERVED JUDGMENT The judgment of the tribunal is that 1. The claimants’ claims were presented within the relevant time limits and are not out of time; and 2. The application to amend these proceedings and to add Unison as a claimant to pursue the collective consultation claims is allowed. REASONS 1. This is the judgment following a Preliminary Hearing to determine three linked issues: (i) whether or not the claimants’ claims were presented in time (with the exception of the claim of Mr Oliver Barnard which it is accepted has been brought in time); (ii) whether all of the claimants or potential claimants are covered by the required ACAS Early Conciliation certificate(s); and (iii) whether the tribunal has jurisdiction to hear the two collective claims for failure to consult. 2. No evidence was adduced to the tribunal today, although I was asked to consider a statement from Ms Kerry Baigent, a Regional Organiser from Unison, on behalf of Unison and the claimants. I can only attach limited weight to this because she was not here to be questioned on this evidence. I have also been assisted by the helpful submissions of Counsel, and there was an agreed bundle of relevant documents and authorities to which Case No. 1400119/2016 and 58 others 2 the tribunal was referred. Effectively the relevant facts are not generally in dispute, and it is the interpretation of the complex legal provisions which fall to be determined. 3. There are currently 59 claimants in this claim. They were all employed by the first respondent the South Western Ambulance Service NHS Foundation Trust and were engaged in the provision of the "111" telephone service for the NHS in Devon. On 30 September 2016 the first respondent’s contract for the provision of that service came to an end, and it was awarded to Devon Doctors Limited who by agreement immediately subcontracted it to Vocare Limited, which is now the second respondent to these claims. The first respondent accepted that there was a service provision change and that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“the TUPE Regulations”) applied. Devon Doctors Limited and the second respondent disputed that the TUPE Regulations applied. Some of the claimants were retained by the first respondent in other roles; some of the claimants were taken on under new contracts with the second respondent; and some were dismissed. The claimants were represented at all times by Unison which was recognised by the first respondent as an independent trade union for these purposes. 4. These proceedings were issued on 24 January 2017 by Unison on behalf of their members, the 59 individual claimants. There were three named respondents, with Devon Doctors Limited subsequently dismissed as the originally named second respondent on 19 May 2017. That is why the remaining respondents are now the first respondent the South Western Ambulance Service NHS Foundation Trust, and the second respondent Vocare Limited. 5. The particulars of claim specified the following claims: unfair dismissal; if appropriate the right to a statutory redundancy payment; wrongful dismissal; unlawful deduction from wages (including any accrued but unpaid holiday pay); and (in the case of Ms Angela Hookings only) pregnancy and maternity discrimination. Ms Hookings has now withdrawn these discrimination claims. Paragraphs 25 to 29 of the particulars of claim were under the heading “Collective Legal Claims" and specified claims on behalf of Unison for failure to inform and consult under TUPE Regulation 15, and for a protective award under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”)). I refer in this judgment to these last two claims as “the collective consultation claims”. 6. The respondents entered responses under which all of the claims were resisted. If these claims proceed there will be a preliminary hearing in November 2017 to determine whether the TUPE Regulations apply and which of the respondents is potentially liable for the claims. 7. With the exception of Mr Oliver Barnard whose individual claim was brought in time (and in respect of which the respondents take no issue) the remaining 58 individual claimants proceeded as follows. Their effective date of termination was 1 October 2016. With the exception of the claims relating to entitlement to a statutory redundancy payment (which have a six month primary limitation period), the “normal” three month primary limitation period for their claims would have expired on 31 December 2016. They commenced the early conciliation (“EC”) process on 22 November 2016 (Day A). The EC certificate was issued on 22 December 2016 (Day B). The claims were lodged on 24 January 2017. Unison was not named as a prospective claimant during the EC process, and does not have an EC certificate in respect of the collective consultation claims. Similarly Unison is not named as a claimant in these or any other proceedings against the respondents in respect of the collective consultation claims. 8. These facts are not in dispute between the parties, but what is in dispute is the effect of the relevant legal provisions. In addition Unison has made an application, both on its own behalf and on behalf of the claimants, to be added as an additional claimant in respect of the collective consultation claims. That application is opposed by the respondents. 9. The relevant law is as follows. Put simplistically, with effect from 6 May 2014 a prospective claimant must obtain an early conciliation certificate from ACAS, or have a valid exemption, before issuing employment tribunal proceedings. Case No. 1400119/2016 and 58 others 3 10. The relevant law relating to early conciliation ("EC") and EC certificates, and the jurisdiction of the Employment Tribunals to hear relevant proceedings, is as follows. Section 18 of the Employment Tribunals Act 1996 (“the ETA”) defines “relevant proceedings” for these purposes. This includes in Subsection 18(1) of the ETA Employment Tribunal proceedings for the relevant claims now brought by the claimants and intended to be brought by Unison (including by virtue of TUPE Regulation 16(1)). Subsection 18A(1) of the ETA provides that: “Before a person ("the prospective claimant)" presents an application to institute relevant proceedings relating to any matter, the prospective claimant must provide to ACAS prescribed information, in the prescribed manner, about that matter.” Subsection 18A(4) ETA provides: “If - (a) during the prescribed period the conciliation officer concludes that a settlement is not possible, or (b) the prescribed period expires without a settlement having been reached, the conciliation officer shall issue a certificate to that effect, in the prescribed manner, to the prospective claimant." Subsection 18A(8) ETA provides: “A person who is subject to the requirements in subsection (1) may not present an application to institute relevant proceedings without a certificate under subsection (4). 11. The prescriptive steps which must be taken in order to satisfy the EC requirements and to obtain an EC certificate are set out in the Schedule to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (“the EC Regulations”). The EC Regulations also provide for limited prescribed exemptions which are set out in Regulation 3(1) (a) to (e). Neither the claimants nor Unison seek to rely on any exemption in this case. 12. With regard to the time limits, the first relevant statute is the Employment Rights Act 1996 (“the Act”). Section 111(2) of the Act provides that an employment tribunal shall not consider a complaint of unfair dismissal unless it is presented before the end of the period of three months beginning with the effective date of termination, or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. 13. Under subsections 23(2) and 23(4) of the Act these provisions are effectively replicated for unlawful deduction claims, and similarly these provisions are...