Made redundant without consultation!

[jayu619]

Good evening legal Beagle members!
i have a situation that I am hoping to have some help with. Will keep it as concise as possible:

About 85 of us work for a large US retailer who went into bankruptcy during April 2020, filing for chapter 11 in the US. The hearing was scheduled for August 25th 2020.

We had anticipated that after the initial 3 months of furlough scheme, ending in June, we would re-open. Come July, we were told we had no updates for 4 weeks. Come August, no updates for a further 4 weeks. However, soon after the bankruptcy hearing on the 25th August, it came to light that my employer/parent company came out of bankruptcy by restructuring and with that, they decided to liquidate the UK business.

This is where the problem we are having as former employees:

None of us had a consultation as we are entitled to by law, of 30 days. We were told on a group zoom call on the 10 September 2020 that as of 9th September, we were made redundant, essentially we were told a day after being made redundant!! All we were told by the liquidators was to claim from the RPS. No other forms of payment offered from our parent company.

I also believe the parent company did not file HR1 form, which should have been 30 days notice prior to any consultation with employees. This may have occurred (not sure how to check if HR1 was filed?) as the bankruptcy hearing was on the 25th August and we were made redundant on the 9th September. I know we as employees don't have any recourse to this point as it's a criminal issue, if no HR1 claim was filed.

What recourse do we have for compensation in the civil route? As I am thinking, essentially we would be going after our US parent company as opposed to the UK arms as it's liquidated - although, companies house still has the UK business as being active.

If we have certainty we can win our case, is it better to go individually or bring a group action?

Any help or advice on the matter would be appreciated.

Thanks
ju

[ULA]

What should happen is that the liquidator provides you with a case reference number (a CN number), which is important to obtaine so that you and your colleagues can make a claim for your redundancy payment from the goverment.

Via this mechanism and depending on your situation, you can apply for:

• a redundancy payment
• holiday pay
• outstanding payments like unpaid wages, overtime and commission
• money you would have earned working your notice period (‘statutory notice pay’)

In regard to the non-consultation, if an employer fails to comply with its legal obligations to provide information and/or consult with the appropriate representatives of the affected employees then they may apply to an employment tribunal for a protective award. A protective award is a penalty which entitles an employee to be paid a week's pay for the 'protected period' up to a maximum of 90 days. However, given the UK company has been liquidated even if you won a Tribunal case I am now sure how the company would be able to pay the award.

[jayu619]

Good evening,
I am starting a thread for some tribunal advice.
Backstory:
9th Sep 2020 - 69 employees were made redundant and company has gone into liquidation
10th Sep 2020 - all 69 employees found out on this day that they were made redundant. Email received in the morning at 10am for all staff members to be on a call at 4pm the same day. We were joined by insolvency Practitioners on the afternoon call to be told we were made redundant as of yesterday.
14th Sep 2020 - notice received from IP stating the above. Mentions all employees to complete RP1 for unpaid wages, holidays, stat redundancy etc and then RP2 for notice pay. Nothing more.

The company we worked for, had filed for bankruptcy abroad back in May. Bankruptcy hearing was at the end of August 25th 2020. I suspect once they restructured their debt etc, we were all on the chopping block. All employees affected have now filled in RP1 and RP2 from redundancy payments service, but no one is aware of the protective award because none of us were given 30 days notices as prescribed by law. We were told a day after we were made redundant over a zoom call.

I had a quote from an employment lawyer who has quoted Ł2000+VAT based on 5 people bringing a claim to the ET. Any others wishing to join, will have to pay something of course. The same laqyer suggested that there is a strong case to win at ET, probably before going into a hearing as the likelihood of our company/IP will not be in a position to defend their case due to liquidation etc.

As we have until the 8th Dec to bring about a claim, I had the following few questions:

1. Can I represent the entire 69 members of staff? And how to go about doing so?
2. Is anyone available to help draft a strongly worded letter to ET in order for the judge to make a decision in our favor?
3. Do I need legal cases to back our case up etc?
4. Cost of applying to the ET?

Thank you in advance.
jay

[ULA]

I presume that all 69 employees were based at the same location can you confirm? If so then in answer to your questions:

1. Was there a recognised union or set of existing elected representatives, if so then they must pursue a claim on your behalf. If not then my understanding is that the claims must be made individually, however on the ET1 form you can link your claim to the claims of your colleagues by naming all involved. That way the Tribunal can identify this as a linked related claim.
2. The first part of the process is to start Early Conciliation via ACAS which you can do from the link below. Only once you have gone through Early Conciliation and are in receipt of a certificate number can you proceed with an Employment Tribunal claim.
3. If it proceeds to ET then it is always good to have case history to support your claim.
4. There are now no fees for applying to bring an ET laim.

https://tell.acas.org.uk/find-a-solu...oyment-dispute

[jayu619]

Is this post related to your thread with the title of "Made redundant without consultation!" If so then I will need to merge these threads together as it is much easier for those of us providing advice to be able to do so based on all the information available. Many thanks

Hi Ula (admin),

Yes that is the one. I was not able to find the thread when using my phone. So I apologies for the overlap/repetition. These 2 threads can be merged - thank you and sorry for the hassle.

[jayu619]

I presume that all 69 employees were based at the same location can you confirm? If so then in answer to your questions:

1. Was there a recognised union or set of existing elected representatives, if so then they must pursue a claim on your behalf. If not then my understanding is that the claims must be made individually, however on the ET1 form you can link your claim to the claims of your colleagues by naming all involved. That way the Tribunal can identify this as a linked related claim.
2. The first part of the process is to start Early Conciliation via ACAS which you can do from the link below. Only once you have gone through Early Conciliation and are in receipt of a certificate number can you proceed with an Employment Tribunal claim.
3. If it proceeds to ET then it is always good to have case history to support your claim.
4. There are now no fees for applying to bring an ET laim.

https://tell.acas.org.uk/find-a-solu...oyment-dispute

hi Ula,

In answer to your question on the outset:

-69 employees were in different stores, 6 to be exact. But we were employed by the UK arm of the liquidated company. Breakdown by location:
Location 1: 30 employees including myself
Location 2: 13
Location 3: 9
Location 4: 7
Location 5: 2
Location 6: 8
(Lawyer friend who quoted the Ł2000, said we are able to claim as a single entity as I question him about whether each location is its own establishment/entity. If that was the case, then only location 1 would have a better chance to claim for PA - is that correct?

Answering your questions in order:
1. No union membership for any of the employees. Same with no elected representatives. Stupid question, is it too late to elect someone now to act on the 69 people's behalf?
2. Thank you. Should all employees do a separate application to ACAS? Or can one person do it on the group's behalf?
3. Ok cool. I have kept all letters and correspondences received by the insolvency practitioners. Is there anything else that I may need to have for claim history?
4. Thank you for confirming.

My last question is then, should we go to ET, can I represent myself/group or do we need to have legal representation?

I look forward to your replies.

[ULA]

Threads merged so all good. Trying to find things on a phone can sometimes be a problem so no worries.

Firstly I am not a solicitor and I appreciate that you have had advice from one.

On the locations I would just like to understand further where these are. Collective consultation is required where there at least 20 or more redudancies from one establishment. An “establishment” relates to employees within the same general locality, even if this is not limited to one office or location. So geographically where are each of the locations of 1-6 above. It may be that if some are within the same general location you may be able to pool them together to get the number to 20 or more but as it currently stands if the locations are geographically disparate only those staff at location 1 can potentially make a claim.

Response back to your questions in order:

1. I believe it is too late to elect a staff representative to act on behalf of a group however many it ends up being to be able to bring and ET claim but I may be wrong.
2. For the purposes of Early Conciliation I would contact ACAS to see whether for this stage it can be treated as a group and one person can effectively lead for the group.
3. Well done for being organised on keeping all the records, it may be worth advising your colleagues to ensure they do the same in the event they can make a claim. Past case law will be useful if it goes to ET so you may want to think about that further down the line but would be very good for presenting supportive precedents.
4. No problem.
5. Individuals can represent themselves at an ET, you do not need to have legal represenation. It does however come down to how comfortable/confident people feel to represent themselves or they can decide they would like a family member or friend to that do that for them.

[jayu619]

Threads merged so all good. Trying to find things on a phone can sometimes be a problem so no worries.

Firstly I am not a solicitor and I appreciate that you have had advice from one.

On the locations I would just like to understand further where these are. Collective consultation is required where there at least 20 or more redudancies from one establishment. An “establishment” relates to employees within the same general locality, even if this is not limited to one office or location. So geographically where are each of the locations of 1-6 above. It may be that if some are within the same general location you may be able to pool them together to get the number to 20 or more but as it currently stands if the locations are geographically disparate only those staff at location 1 can potentially make a claim.

Response back to your questions in order:

1. I believe it is too late to elect a staff representative to act on behalf of a group however many it ends up being to be able to bring and ET claim but I may be wrong.
2. For the purposes of Early Conciliation I would contact ACAS to see whether for this stage it can be treated as a group and one person can effectively lead for the group.
3. Well done for being organised on keeping all the records, it may be worth advising your colleagues to ensure they do the same in the event they can make a claim. Past case law will be useful if it goes to ET so you may want to think about that further down the line but would be very good for presenting supportive precedents.
4. No problem.
5. Individuals can represent themselves at an ET, you do not need to have legal represenation. It does however come down to how comfortable/confident people feel to represent themselves or they can decide they would like a family member or friend to that do that for them.

Hi Ula

So the locations are as follows:
Location 1: Regent Street
Location 2: Sloane Square
Location 3: Marylebone High Street
Location 4: South Kensington
Location 5: Holborn
Location 6: Shoreditch

By distance, all are within close proximity and not separated by great distance. Does that answer your question?

Thanks Ula, I will phone ACAS tomorrow.

[ULA]

Thanks for the information, I have taken the liberty of editing the addresses down to make them less specific, however I get the idea.

That then brings into play what has become known as the Woolworth's case which went all the way to the European Court of Justice and concluded that the term “establishment” in a collective redundancy context means “the entity to which the workers made redundant are assigned to carry out their duties”. This meant that each of the individual Woolworths stores were to be regarded as a separate establishment for collective consultation which then only needed to take place if 20 or more redundancies were being made at a specific store.

[jayu619]

Thanks for the information, I have taken the liberty of editing the addresses down to make them less specific, however I get the idea.

That then brings into play what has become known as the Woolworth's case which went all the way to the European Court of Justice and concluded that the term “establishment” in a collective redundancy context means “the entity to which the workers made redundant are assigned to carry out their duties”. This meant that each of the individual Woolworths stores were to be regarded as a separate establishment for collective consultation which then only needed to take place if 20 or more redundancies were being made at a specific store.

Thank you Ula.
From my preliminary research, I did come across this also back in September.
So to confirm then, our stores will be treated as a separate location, and only location 1 has the best prospect of winning a protective award?
Thank you.

[ULA]

Given the interpretation of the Woolworths case and the similarity, I am presuming, between the employer you worked for then yes, potentially it would only be the staff at location 1 who could claim for the protective award.

Did you manage to contact ACAS today?

[jayu619]

Hi Ula
i did not speak to ACAS on Friday, I will get onto them tomorrow first thing

I am trying to figure out the establishment thing. I would have hoped all e.ployees would benefit from the protective award...

[jayu619]

Hello Another question in my reasons, given our situation above, with regards to unfair dismissal, do the other employees need to have been employed for 2 years to bring a claim to the tribunal?
thanks

[ULA]

Yes to bring an unfair dimissal claim you must have been employed for 2 years, unless you can prove discrimination or a number of other situations which can be found here:

https://www.gov.uk/dismissal/unfair-...tive-dismissal

Although given the circumstances I doubt theses will apply.

[jayu619]

Thank you Ula Is the 2 year rule a must? As in could we possibly have a judgement made in our favour given the circumstances our dismissal/redundancy was made? I'd say half of the employees have been with the company less than 2 years...

Also, I spoke to ACAS, forgot to report back, explained the situation, and they've advised doing a group claim with one person handling all, which will most likely be me.

What I didn't understand is what it's meant by the protective award will be awarded minus the usual taxes and any benefit received in that period - what period is it being referred to?

Thanks