McGilligan v KPL Contracts Ltd (In Administ...

Factual and Procedural Background

This opinion concerns a series of employment tribunal cases collectively referred to as the "listed cases," involving complaints under Article 217 of the Employment Rights (Northern Ireland) Order 1996 (ERO). The claimants allege that, in the context of redundancies carried out on 21 February 2014 by the respondent, no collective consultation as required by Article 216 of ERO took place. The respondent, a company currently in administration, did not contest the proceedings, and the administrators consented to the presentation of the cases. The tribunal previously decided that each Article 217 complaint was well-founded. This opinion addresses the remedies phase, specifically the determination of protective awards for the claimants.

Legal Issues Presented

1. Whether a protective award should be made in respect of the Article 217 complaints.
2. What the appropriate scope of the protective award should be, including which employees it should cover.
3. What the duration of the protected period should be for the protective award.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dempsey and Others v David Patton and Sons (NI) Ltd (In Administration) [Case Ref. No: 947/13 and Others]	Legal principles regarding protective awards and collective consultation under ERO.	The tribunal adopted and applied the legal principles set out in this case to the present matter.
Haine v Day [2008] IRLR 642	Principles guiding the appropriateness of protective awards.	Quoted within Dempsey and applied to confirm that a protective award was the only appropriate remedy.
Glendinning v Mivan (No. 1) Ltd (In Administration) [Case Ref. No. 470/14]	Principles concerning the personal scope of protective awards.	Applied to determine which employees should be covered by the protective award in the listed cases.

Court's Reasoning and Analysis

The court began by referencing the established legal principles from the Dempsey case, particularly those concerning the entitlement to protective awards when collective consultation obligations under Article 216 of ERO are breached. Having found that the claimants' complaints under Article 217 were well-founded, the court determined that a protective award was the appropriate remedy, consistent with the principles in Haine v Day. The commencement date of the award was set as the date of the earliest relevant dismissal, 21 February 2014. The tribunal considered the duration of the protective award, applying the principles from Dempsey, and decided on a 90-day period, finding no mitigating circumstances or evidence of relevant collective consultation.

For the personal scope of the award, the court applied the principles from Dempsey and Glendinning, deciding that the award would cover all claimants in the listed cases as well as all other employees dismissed or proposed to be dismissed as redundant from 21 February 2014 onwards. This approach aimed to place employees in the same position as if a trade union or workforce-wide employee forum had existed for collective bargaining purposes.

The court also addressed procedural and administrative obligations under the Employment Protection (Recoupment of Jobseeker's Allowance and Income Support) Regulations (Northern Ireland) 1996, including the employer's duty to provide employee information to the Department for Social Development (DSD) and the mechanism for recoupment of benefits paid to employees during the protected period.

Holding and Implications

The court's final decision was to make a protective award in respect of all the listed cases.

The protective award applies to all claimants in the listed cases and to all other employees of the respondent dismissed or proposed to be dismissed as redundant from 21 February 2014 onwards. The protected period for the award is 90 days commencing on the date of the earliest dismissal. The respondent, being in administration, is obliged to comply with statutory requirements concerning information disclosure and recoupment notices to the Department for Social Development. This decision does not set new precedent but enforces existing legal principles concerning protective awards and collective consultation under the Employment Rights (Northern Ireland) Order 1996.