No Attendance For the v British Midland Regional Ltd T/a Flybmi (In Administration) — 2019

The respondent went into administration on 18 February 2019, and that date was treated as the date the first dismissals took effect. The claims were two consolidated groups seeking a protective award under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 in relation to the same redundancy exercise. A preliminary hearing had already confirmed that the administrators consented to the proceedings, and no defence or evidence was filed by the respondent.

The tribunal noted a recognition agreement dated 11 January 2018 under which Unite was recognised as the sole collective bargaining unit for all cabin crew at UK operating bases in relation to pay, hours of work and holidays. After that agreement was produced, Simpson Millar withdrew three claims on the basis that those claimants were cabin crew covered by the Unite claim. The final hearing was conducted on written submissions only.

On the evidence, the tribunal accepted that the respondent proposed to dismiss 20 or more employees at the establishments where they worked and that there had been a complete failure to consult Unite, employee representatives, or the affected employees themselves. The tribunal found that there was no evidence of any attempt to carry out consultation and no mitigation was put forward by the respondent.

Applying the protective award principles referred to in Susie Radin Ltd v GMB and ors and noting that the respondent's ability to pay was not a relevant factor under Smith and or v Cherry Lewis Ltd (in receivership), the tribunal found the default serious. It therefore started from the maximum protected period of 90 days, found no mitigating circumstances to justify any reduction, and made a protective award for remuneration for the 90-day protected period starting on 18 February 2019.