THE INDUSTRIAL TRIBUNALS

CASE REF:	2259/12

CLAIMANT:			 Unite the Union

RESPONDENT:		Commercial Graphics (NI) Ltd (in administration) 

DECISION 
The unanimous decision of the tribunal is as follows:

(A)	It is declared that the claimant’s complaint is well-founded.

(B)	The tribunal has decided to make a protective award in respect of all of those employees of the respondent who have been dismissed as redundant and who are within the scope of these proceedings.  (See below).

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

(D)	The protected period began on 17 August 2012 and lasted for 90 days.

(E)	An employee is within the scope of these proceedings if all of the following apply to that employee. (1) The employee was employed by the respondent in Northern Ireland and was made redundant by the respondent in August 2012.  (2)  The employee was not one of the office staff or the administrative staff of the respondent.  

Constitution of tribunal:

Chairman:		Mr P Buggy

Members:		Mr A Kerr
			Mr J Hughes

Appearances:

The claimant was represented by Mr J O’Neill, Solicitor of Thompson McClure Solicitors.

The respondent was not represented.
REASONS

1.	The administrators of the respondent have given permission for the pursuit of this complaint.
  
2.	Article 216 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”) imposes collective consultation duties in the context of redundancies.

3.	This is our Decision in respect of a complaint which the claimant has brought under Article 217 of the Order.  (According to that complaint, the respondent has failed to comply with the requirements of Article 216).

4.	In August 2012, the employees of the respondent, at a single site in Northern Ireland, were informed that the business was closing down the following day.  Around that time, approximately 30 employees (including members of the claimant’s trade union), who were working in that location, were made redundant.

5.	Unite is recognised by the respondent as the trade union, for collective bargaining purposes, in respect of all of the staff of the respondent, other than office and administrative staff.

6.	As a result of the oral testimony which we heard in this case, and as a result of the documents which we were shown in this case, we are satisfied that no significant collective consultation, of the type which is envisaged in Article 216, was carried out in this case.

7.	In this case, we have applied principles which were set out by the English Court of Appeal at paragraphs 61 to 67 of the judgment in Haine v Secretary of State for Business Enterprise and Regulatory Reform and Another [2008] EWCA Civ 626.

8.	As the Court in Haine highlighted, at paragraph 61 of its judgment, in a case where there has been no consultation, the proper approach is to start with the maximum period of 90 days, and to reduce it only if there are mitigating circumstances justifying a reduction.

9.	We are unaware of any mitigating circumstances which would justify a reduction in this case.

10.	The Article 216 obligation to consult is not an absolute obligation.  If there are any “special circumstances” which render it impracticable for the employer to comply with the statutory obligations in full, then it is sufficient that it does what is reasonably practicable in the circumstances, towards full compliance.  Article 216(9) provides as follows:

		“If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of paragraphs (2), (4) or (6), the employer shall take all such steps towards compliance with that requirement as are reasonably practicable in those circumstances”.

11.	Furthermore, Article 217(6) of the Order imposes the onus of establishing whether there are “special circumstances” (rendering it not reasonably practicable for the employer to comply with the requirements of Article 216) on the employer.  The employer has not been represented at this hearing, no doubt for costs reasons.  However, the fact remains that the employer has not discharged the onus imposed under Article 217(6).

12.	Article 217 of the Order makes provision for the enforcement of the Article 216 consultation duties.  Article 217 provides that, where an employer has failed to comply with a requirement of Article 216, a complaint may be presented to an industrial tribunal, on that ground:

		“… in the case of failure relating to representatives of a trade union by the trade union …”

13.	Clearly, in the circumstances of this case, the relevant Article 216 failure was a failure relating to representatives of Unite.

14.	We are satisfied that, at the relevant time, Unite was recognised for collective bargaining purposes, in relation to all of the workers of the respondent company, at the relevant site, with the exception of office and administrative staff.  (Unite succeeded to collective bargaining recognition which had been available to Amicus at that site.  Amicus had itself succeeded to collective bargaining recognition which had been available to the former Graphical Paper and Media Union).

15.	Enquiries made by and on behalf of the claimant indicates that the staff of the respondent, in August 2012, with the exception of office and administrative staff, consist of the persons whose names are listed in the attached appendix.

Recoupment Notice

[1]	In the context of this Notice, “the relevant benefits” are jobseeker’s allowance, income support and income-related employment and support allowance. 

[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 of 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 dismissal).  That is a requirement of regulation 6 of the Regulations which are mentioned below.

[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 Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996  (” 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.  

Chairman:

Date and place of hearing:	3 January 2013, Belfast.	

Date decision recorded in register and issued to parties:

2259/12IT								APPENDIX

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