Collective redundancy and protective awards — resources for advisers
The ET1A
Your claim, in section 8.1 of the ET1A form is “A claim for a Protective Award under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992”, and in section 8.2 you need to set out the key facts which support the legal points that have to be addressed. For example:
“The claimants are all employees of the first Respondent, [name of employer here] employed at their premises at Badlyrun Towers, Industrial Road, Bigcity. [If you’re not including the Secretary of State for BEIS as a second Respondent, you can refer to the employer simply as ‘the Respondent’, omitting ‘first’.]
On 1st February 20XX the claimants were informed [at a meeting, by email, by letter, by telephone call] that the company was insolvent and would cease trading with immediate effect. The claimants were given [or sent] notice in writing that their employment was being terminated due to redundancy.
XX [number, which must be 20 or more] of staff were made redundant at the same establishment. The first of the dismissals took effect on 1st February 20XX and all claimants were dismissed by 7th February 20XX [Note there are usually a few key employees kept on for a short period to assist the liquidators or administrators].
The first Respondent is insolvent and entered a creditors’ voluntary liquidation on 8th February 20XX.
The first Respondent had failed to comply with the requirements of Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (‘the Act’) in that there had been no prior consultation whatsoever taking place at least 30 days [or 45 if more than 100 redundancies], or at any other time, before the first of the dismissals took effect, as required by Section 188(1A)(b) of the Act.
There is no Trades Union or other appropriate representative body within the meaning of section 188(1B) of the Act.
The claimants are seeking:
1. A declaration that the first Respondent has failed to comply with the requirements of Section 188 of the Act
2. A Protective Award in respect of each of the claimants
In section 9.2 of the form you can state:
“In respect of the First Respondent, 90 days’ pay for each claimant at the appropriate rate.
In respect of the Second Respondent, payment of the Protective Award pursuant to section 182 of the Employment Rights Act 1996.” [If the Secretary of State is not named as a respondent this sentence can be omitted].
The witness statement
The witness statement should address all the key facts needed to evidence the legal basis for the claim and which are known to the witness. If the Secretary of State has not been named as second respondent, then just the first respondent’s name will need to appear on the witness statement.
For example:
“In the Bigcity Employment Tribunal Case Number 123456/20XX and 53 others
Joe Bloggs and 53 Others
Claimants
Badlyrun Business Limited (in Liquidation) (1)
The Secretary of State for Business Energy and Industrial Strategy (2)
Respondents
Statement of Ms. H.R. Manager
I, Haina Rakshi Manager of 3 Residential Street, Littletown make this statement in support of the 54 claims made against the 1st and 2nd respondents by myself and my former colleagues at Badlyrun Business Limited (‘Badlyrun’) for a protective award pursuant to section 189 of the Trades Union and Labour Relations (Consolidation) Act 1992.
1. I was employed by Badlyrun from 1st April 2008 to 1st February 20XX as Human Resources Manager. The facts stated here are known to me by reason of that employment and are true to the best of my knowledge and belief.
2. Badlyrun employed 68 people all of whom had their normal place of work at Badlyrun Towers, Industrial Road, Bigcity. I can confirm that all the claimants listed in Schedule A were employed by Badlyrun as at 1st February 20XX.
3. At a meeting held at Badlyrun Towers on 1st February 20XX myself and those colleagues present were told by Arthur RIchman, the Chief Executive of Badlyrun, that Badlyrun was insolvent, and would cease trading immediately, meaning that all staff would be made redundant with immediate effect. This was except for a few people who would be assisting the liquidators, and who would remain employed until 7th February 20XX. This announcement was made to all the claimants listed in Schedule A who were present at the meeting. Those who were not present at the meeting were informed by me by telephone, text or email during the course of that day. A copy of the redundancy notice (see page 73 of the bundle) was sent by email to every employee.
6. We were told that there were no funds to pay wages and salaries that were due, pay in lieu of notice, accrued holiday pay or redundancy pay. We were given details of the liquidators and an organisation that could provide assistance with making claims from the redundancy payments scheme.
7. Before 1st February 20XX I was aware that Badlyrun was experiencing some difficult trading conditions, as orders were falling and some suppliers were refusing to supply us unless paid in advance.
8. There was no warning or notice, informal or otherwise, given to staff before 1st February 20XX that anyone was likely to be made redundant. There had been no consultation with staff generally or any individual member or members of staff about any aspect of the financial problems, or indication that there may be possible redundancies. There is no trade union and no staff association or other representative body. There were no arrangements in place or set up for consultation with staff before the redundancies were put into effect.”
