Miss D Hayes Ms C Burr Ms L Salford Ms J-L Stewart v Petspyjamas Limited — 2021

This was a preliminary hearing in four linked claims brought by Miss D Hayes, Ms C Burr, Ms L Salford and Ms J-L Stewart against Petspyjamas Limited. The tribunal heard evidence from all four claimants and from Mr Rushworth for the respondent. The issue was whether Aimee Withrington and Florence Simons, who had been treated as employee representatives in the redundancy consultation, were properly elected for the purposes of s.188 TULR(C)A 1992.

The tribunal found that the respondent was a small business affected by the COVID-19 pandemic, with 45 employees, 36 placed at risk and 26 redundancies ultimately implemented. It found that on 26 May 2020 the respondent sent an email and an embedded DocuSign letter to staff at risk, inviting nominations for employee representatives. At least ten employees responded to the process, six nominating Florence Simons and four nominating Aimee Withrington. The tribunal found that the respondent intended two representatives, one for revenue-generating teams and one for non-revenue-generating teams, and that Withrington and Simons were the nominees for those two groups.

Applying s.188A(1) TULR(C)A 1992 and the authority of Phillips v Xtera Communications Ltd [2012] ICR 171, the tribunal held that the respondent had made such arrangements as were reasonably practicable to ensure that the election was fair. It accepted that the consultation was urgent, that email communication was suitable for a workforce used to working remotely, and that although a separate consultation email and longer timetable might have been better practice, best practice was not the legal test. The tribunal also found that the respondent had determined a sufficient number of representatives, had properly identified separate classes of workers, and had not unreasonably excluded any affected employee from standing.

The tribunal held that the statutory voting provisions in s.188A(1)(g) to (i) did not apply because the process did not proceed to a ballot: where only two nominations were received for two positions, the nominees could go forward without a formal election. It therefore concluded that the employee representatives were properly elected for the purposes of the legislation and that the claimants' claims failed.