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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Henry v SMTEK Europe Ltd [2009] NIIT 1142_08IT (14 January 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/01142.html Cite as: [2009] NIIT 1142_08IT, [2009] NIIT 1142_8IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1142/08IT

CLAIMANT: Jennie Henry

RESPONDENT: 1. SMTEK Europe Ltd (in liquidation)

2. Department for Employment and Learning

DECISION

The decision of the Tribunal is that the first named respondent has failed to comply with the requirements of Article 216 of the Employment Rights (Northern Ireland) Order 1996 and orders that the claimant be paid a protective award under Article 217 of the 1996 Order for the protected period of 90 days.

Constitution of Tribunal:

Chairman (sitting alone): Ms Bell

Appearances:

The claimant represented herself.

The first named respondent did not appear and was not represented.

The second named respondent was represented by Mr Curran of the Department for Employment and Learning.

1. The claimant in her claim sought a protective award having been made aware of her potential entitlement following discussion with a former colleague, Lisa Fenner who had also been employed and made redundant by the first named respondent and made successful claims in respect thereof with 4 other non-union represented employees, Margaret McDonald, Nicola Sharpe, Colin Fearon and Sinead McVeigh. No responses have been received from the first or second named respondents.

Issues for the Tribunal

2. The issues for the Tribunal were as follows:

1. Was it not reasonably practicable for the complaint to be presented within 3 months of the date of the last dismissals to which it relates?

2. If so, was the complaint presented within such further period as the Tribunal considers reasonable?

3. Has the first named respondent complied with its duty to consult under Article 216 of the Employment Rights (Northern Ireland) Order 1996?

Findings of Fact

3. The claimant was employed by the first named respondent from May 2003. In June 2004 the claimant went off on maternity leave and was subsequently made redundant on 15 June 2004 along with the first named respondent’s entire remaining workforce consisting of more than 100 employees, as a result of the first named respondent’s financial difficulties. The claimant had little knowledge of what was happening with the first named respondent’s business save what she was told by her colleagues.

4. The first named respondent failed to consult with either the Trade Union which represented most of its employees, or its non-union employees, concerning the possibility and likelihood of redundancy.

5. The first named respondent entered into a Company Voluntary Arrangement with its creditors and a supervisor was appointed on 22 July 2004. The claimant did not receive any maternity pay from the first named respondent as a result of its financial difficulties and had to pursue a claim in respect thereof. Union represented employees brought successful claims to the Industrial Tribunal for protective awards. Following this a number of non-union represented employees successfully sought protective awards.

6. The claimant was unaware of her potential entitlement to a protective award until informed by a former colleague, Lisa Fenner, one of the non-union represented employees, around July 2008 of her successful claim. The claimant without delay gathered information to fill in an application and submitted a claim to the Tribunal, received on 14 August 2008. The claimant did not seek advice at any time after her redundancy as her main priority initially was her new born baby born on 18 June 2004 and thereafter securing maternity pay which took until November 2004 and because she did not believe that she had any other grievance about which to seek advice.

7. It was agreed by the parties that the Claimant received £209.50 gross per week, being £163.50 net.

Legislation

8. Article 216 of the Employment Rights (Northern Ireland) Order 1996 provides that where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within the period of 90 days or less the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals. Procedures are set out for electing representatives to meet with the employer to consult over proposed redundancies, where employees are not union members and trade union representation is not appropriate, if employees after invitation fail to elect a representative then Article 216 (11A) provides that the employer “shall give to each affected employee the information set out in paragraph (6)” which includes reasons for proposals, numbers and descriptions of employees whom it is proposed to dismiss as redundant, the total number of employees at the establishment, the proposed selection method, proposed dismissal method and proposed method of calculation of redundancy payments.

9. 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 under Article 217(d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant.

10. Article 217(2) states that if the tribunal finds the complaint well founded it shall make a declaration to that effect and may also make a protective award ordering the employer to pay remuneration for the protected period as per Article 217(3). Under Article 217(4) the protected period is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with any of the requirements of Article 216 but shall not exceed 90 days.

11. Under Article 217(5) an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal;

    1. before the date on which the last of the dismissals to which the complaint relates takes effect, or

    2. during the period of 3 months beginning with that date, or

    3. 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 during that period of 3 months.

12. Article 218(2) provides that where a protective award has been made the rate of remuneration payable is a weeks pay for each week of the protected period, and remuneration in respect of the period less than one week shall be calculated by reducing proportionately the amount of a weeks pay.

Application of Law to Facts Found

13. Complete ignorance of a right to make a claim may make it not reasonably practicable to present a claim in time, however the ignorance itself must be reasonable. The question for the Tribunal is whether the claimant ought to have known of the right to make a claim. The Tribunal is satisfied in this case, particularly in light of the claimant’s evidence that she did not seek advice because she did not believe that she had any grievance to seek advice upon, the lack of information provided to and available to the claimant as a result of being off on maternity leave whilst the redundancies occurred and the claimant’s pre-occupation initially with her new born baby and attempts to secure maternity pay, that the claimant not ought to have known of her potential entitlement to a protective award and hence that it was not reasonably practicable for her complaint to be presented within 3 months of the date of the last of the dismissals. The Tribunal is satisfied that the claimant as soon as she became aware of her rights arising from the first named respondent’s failure to consult acted swiftly and presented her claim without delay and within a reasonable period thereafter.

14. It is clear that no attempt was made by the first named respondent to consult with the claimant, a non-union employee, on an individual basis as required under Article 217 of the 1976 Order and to provide the required information under Article 216. The Tribunal accordingly considers it just and equitable in all the circumstances that the claimant be awarded a protective award for the protected period of 90 days against the first and second named respondents.

Chairman:

Date and place of hearing: 26 November 2008, Belfast

Date decision recorded in register and issued to parties