in person For the v Respondent — 2021

The claimant brought a complaint under s.189 TULRCA alleging that Audiogum Ltd failed to comply with the collective consultation duties in s.188 before making 22 employees redundant, with the first 18 dismissals taking effect on 7 February 2020. The tribunal recorded that the claimant was on maternity leave throughout the relevant period. It found that the business had been under pressure for some time, with investment issues arising from September 2019 and senior management flying to the United States on 1 January 2020 to pursue acquisition discussions with B&W.

The tribunal rejected the respondent's case that there were special circumstances. It held that the withdrawal of B&W was not sudden or completely unexpected because senior management had already considered contacting administrators by 14 January 2020 and had spoken to administrators by 20 January 2020. It further found that the possibility of failure of the B&W negotiations had been foreseen earlier, so the respondent did not satisfy the special circumstances defence in s.188(7).

On the consultation evidence, the tribunal accepted that there may have been some informal staff meetings, but found there was no adequate formal information and consultation process, no proper written follow-up to all staff, and no effective mechanism to ensure the claimant was told what was happening while she was on maternity leave. It found that the claimant was not properly informed or consulted until the meeting on 31 January 2020, and that the alleged 30 January meeting was not supported by the strongest documentary evidence and was likely a confusion of dates.

Applying the approach in Susie Radin, the tribunal started from the maximum 90-day period and reduced it slightly because the employer had made some informal attempts to keep staff informed and the dismissals were not completely without warning. It considered that there was still a complete failure to carry out meaningful consultation and that the claimant should have been invited to earlier meetings. The tribunal therefore made a protective award equivalent to 85 days' remuneration, and stated that the recoupment regulations applied.