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Looking for some inspiration please...... have applied with others for protective award (company in administration). Appears that the ET judge does not agree with adminstrators to have struck out.

 

All but one of their responses can easily be knocked back, just the issue of number of employees in an establishment requiring the need for consultation.

 

300 employees across 12 UK sites, as few as 5 in some branches to as many as 55 in the head office.

 

Am i right in thinking there is no legislation in place regarding this and it is down to the ET judges decision on the day to decide if we should be treated as a single establishment?

 

Average claim would be for 15k, have it on good authority that unsecured creditors will receipt circa 40p/£ so I'm pretty sure the IP will do all they can to have this struck out and throw good money at doing so.

 

Thanks

 

Gezwee

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Hi Gezwee,

 

There is some legislation re stat consultation, but from memory it does not define 'single establishment' - I'll check this today

 

Just wondering did you make a claim with the RPO before bringing the ET claim, and also who did you name as defendant the limited company alone or the administrators also?

 

Che

...................................................................... [FONT=Comic Sans MS]Please post on a thread before sending a PM. My opinion's are not expressed as agent or representative of The Consumer Action Group. Always seek professional advice from a qualified legal adviser before acting. If I have helped you please feel free to click on the black star.[/FONT] [FONT=Comic Sans MS] I am sorry that work means I don't get into the Employment Forum as often as I would like these days, but nonetheless I'll try to pop in when I can.[/FONT] [FONT=Arial Black][FONT=Comic Sans MS][COLOR=Red]'Venceremos' :wink:[/COLOR][/FONT][/FONT]

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Hi Elche

 

Thanks for looking in

 

RPO decision was reached some 6 months after IP became involved, took a lot of pressure from many affected staff to get the IP to issue RP1's and for them to accept we had been made redundant. Think the issue of new/revised contracts finally swung it.

 

RP Directorate names insolvent company as the responsible party. No mention of IP in papers issued.

 

Our belief is that the IP dragged it out to get past the 90 day rule for ET1 submissions, luckily the ET judge seems to be on our side and has allowed claim to progress due to 'exceptional circumstances'

 

Claim now on stay due to Para 43 of Sch B1 to the insolvency act 1986.

 

Looking around the web forums it appears that all of the defence is stock for IP's. The only question mark we have is regarding 'trigger' for consultation due to numbers of staff. They defend by stating that only 6 affected employees at branch so no duty to collectively consult.

 

Having scratched around I can find no legislation or directions for judge other than it would be their definition of the term establishment on the day that would swing it in either direction.

 

My thoughts are that there must be a recent case where this has been accepted....... Woolies comes to mind, must have been some stores around the country with very few staff but all succesfully claimed protective award (not worth a penny to the poor buggers) but nonetheless there must be a precedent in there somewhere.

 

Any thoughts or recent caselaw links would be appreciated.

 

Thanks Gez

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Hi gezwee

 

There have been cases regarding the definition of a single establishment.

 

The reason for my interest gez is that I have a client right now whose employer went 'bankrupt' - not sure of the correct term the IP used in their letter - I'm no insolvency practitioner.

 

My thoughts are that as the NIF covers the basic unfair dismissal award along with non payment of wages subject to a cap and non-payment of SRP (again capped), that if the RPO have not sent my client's cheque within 3 months from date of dismissal I will have to cover the position by submitting an ET1 anyway.

 

I personally reckon that due to the current economic climate the chances of the RPO processing the claim within 3 months is anorexically slim!

 

Thus I intend to submit ET1 with heads of claim for unfair dismissal due to lack of consultation, non-payment of SRP + wages / notice / holiday etc

 

Did you submit the above claims in your ET1 along with non-payment of the PA or have you just claimed the PA?

 

May I ask which RP office is / was dealing with your claim? (this can be pm'd if you wish)

 

Anyway back to that case law on 'single establishment'

 

The basic framework is that the, " duty to consult under TULRA arises only in respect of collective redundancies as defined. The definition is 20 or more employees at the same establishment within a period of 90 days (s 188(1))."

 

Now before I go on to case law, of which there is a huge amount, it is worth pointing out that many commentators believe that the the Uk's attempt to give effect to the relevant European Directive has in this case been insufficient:

 

The EAT has declared, albeit obiter, that TULRA is incompatible with the CRD because TULRA sets the threshold of collective redundancies at 20 or more employees at one establishment within the space of 90 days, whereas, in the EAT's view, the CRD should apply where an employer proposes 20 or more redundancies across the whole of the undertaking within 90 days, whether or not the undertaking consists of several establishments.

This is of significant importance, and in my opinion is partly the reason from so much case law on this issue.

 

English decisions had already reached much the same conclusion as the ECJ about the proper interpretation of 'establishment'. They looked to the criteria mentioned by Lord Parker CJ in Secretary of State for Employment and Productivity v Vic Hallam Ltd (1969) Div Ct, and approved by the House of Lords in Lord Advocate v Babcock and Wilcox Ltd, [1972] 1 WLR 488, HL. Those two cases dealt with the meaning of 'establishment' in relation to selective employment tax, and, whilst holding that it was a question of fact and degree and saying that no comprehensive test was possible, Lord Parker thought that relevant factors would include the exclusive occupation of premises, some degree of permanence, some organisation of the men working there, some administration, and (because the words appeared in the SET statute itself) the fact that it was a place in which or from which persons were employed. The question in both of the cases was whether construction sites were separate establishments or not. Lord Reid commented that he would usually expect to see a building of some sort where the men could report, resort and be paid, and where records, tools or equipment were kept. Lord Simon added that for him the word 'establishment' involved the idea of a body of persons carrying on activities by way of business associated with a locality.

 

 

See also

 

 

MSF v Refuge Assurance plc

 

 

There is therefore a real conundrum for private sector employees:

 

 

... if the EAT is right, then workers who ought to be protected by TULRA are left unprotected. It is a case of 'heads, the employer wins; tails, the employees lose'. If, on the one hand, TULRA correctly interprets the CRD, then an employer dodges any duty to consult if his undertaking is, by accident or design, fragmented into many small units (as happened in MSF itself); if, on the other hand, TULRA incorrectly interprets the CRD, then the employees and their union or other representatives have no effective remedy, for, as regards private-sector workers, the CRD is not directly enforceable between private citizens (as the EAT pointed out in MSF)

 

 

A conclusion (of sorts) to the above analysis:

 

 

Therefore, tribunals should be very reluctant indeed to find that, where a comparatively large undertaking is fragmented into small units, those small units are sufficiently independent to be treated as separate establishments (cf Clarks of Hove v Bakers' Union [1979] 1 All ER 152, —bakery and 28 shops were a single establishment; Barratt Developments (Bradford) Ltd v Union of Construction, Allied Trades and Technicians [1977] IRLR 403, [1978] ICR 319, EAT—headquarters and 14 separate building sites were a single establishment).

 

 

Hope this has been some help on this very complicated issue, I.e. the definition of 'single establishment' for the purposes of initiating statutory consultation.

 

 

Che

...................................................................... [FONT=Comic Sans MS]Please post on a thread before sending a PM. My opinion's are not expressed as agent or representative of The Consumer Action Group. Always seek professional advice from a qualified legal adviser before acting. If I have helped you please feel free to click on the black star.[/FONT] [FONT=Comic Sans MS] I am sorry that work means I don't get into the Employment Forum as often as I would like these days, but nonetheless I'll try to pop in when I can.[/FONT] [FONT=Arial Black][FONT=Comic Sans MS][COLOR=Red]'Venceremos' :wink:[/COLOR][/FONT][/FONT]

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Hi Che

Many interesting pointers...... have to thank you for the time you put into your reply - much appreciated.

In answer to the the questions you posed;

RPO in our case was Watford.

Have to admit that most of us were pretty naive about employment law hence the hurried claims for PA to ET whilst still awaiting RPO decision. Appears the Judge was looking to guide us as also asked if we would like to amend particulars to include shortfall of capped SRP/ Holiday/Wages etc along with PA after RPO decison found in our favour.

Ours does not include any element for unfair dismissal, others (lodging claims slightly later) have included UD within heads having had the opportunity to report our claim acknowledgent to their local ET. They (the ET) appear to have assumed a precedent has been set in this case and allowed all normally time barred claims to continue with ever increasing additions to particulars.

Our hope is that a branch with highest value is called to hearing first (and wins), this presumably would either force the IP to back down and acknowledge all or we would be in a position to point the judge in the direction of his learned colleagues decision and hopefully lead to a very short hearing.

Thanks

Gez

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  • 1 month later...

Hi Che

 

Hoping you are still subscribed to this one.

 

Just been advised that the 'phoenix' company are still making use of my old email account to attract new business. Slightly annoyed as I'm in the same line of business with another co.

 

If mail accounts are [email protected] does that not make my name my property and come to think of it would the old accounts not be subject to the I.P's jurisdiction?

 

I work in a fairly niche market where my name is well known, is there any way to prevent the use of my name in comms or to close down mail accounts?

 

Thanks

 

Gez

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