Claimant v Perform 365 Ltd (in Creditors’ Voluntary Liquidation) and Secretary of State for Business, Energy and Industrial Strategy — 2021

Mr Gary Cantelo and the other individual claimants brought multiple claims for protective awards after Perform 365 Ltd entered creditors' voluntary liquidation. The tribunal held that each claimant had standing because there was no recognised trade union and no elected employee representatives, and it treated the case as a set of individual claims rather than a representative claim. The central questions were whether the collective consultation duty under s.188 was engaged and, if so, what protective period was just and equitable.

The tribunal found that the respondent operated as a single establishment centred on Tamworth. It accepted that the workforce comprised about 22 employees, including eight field engineers and 13 other staff, and that the engineers were integrated into one national operation rather than divided into separate regional establishments. Their contracts based them at the company address in Tamworth, they attended there regularly for stock, training, administration and team matters, and the 'lock ups' used around the country were found to be strategic storage points for one supermarket contract rather than separate branches or offices. The HR1 filed on 30 June 2020 identified Tamworth only as the establishment, which the tribunal treated as consistent with the wider factual picture.

Because there was a single establishment and proposed redundancies affected 20 or more employees, the s.188 duty to consult was engaged. The tribunal found no election of employee representatives and no compliant consultation. It accepted that the workforce knew from June 2020 that the business was in difficulty and that redundancy was possible by early August, but the first clear announcement that redundancies were actually happening came at the virtual meeting on 26 August 2020, when staff were told they were redundant with immediate effect. Applying s.189 and the guidance in GMB v Susie Radin Ltd, the tribunal held that the failure to consult was very significant, but it stepped back from the maximum and fixed the protected period at 85 days. The recoupment provisions applied.