Mr Alan Molloy and others v No appearance and No representation Secretary of State for Business, Energy & Industrial Strategy — 2023

The claimants presented claims on 17 June 2022 for a protective award under section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992. The first respondent was placed into compulsory liquidation on 6 July 2022. The parties then sought a judgment by consent, and the liquidator indicated that the first respondent did not intend to defend the proceedings, but the Tribunal raised the question whether consent of the court dealing with the liquidation was still required under section 130(2) of the Insolvency Act 1986.

The Tribunal considered competing authorities, including Carr v British International Helicopters Limited and Hill v Black. It preferred Carr, holding that a claim in the Employment Tribunal is a proceeding within the meaning of the insolvency legislation and that the consent requirement is mandatory. The Tribunal accepted that Hill concerned different facts and an earlier statutory context, and concluded that the wording and purpose of section 130(2) of the Insolvency Act 1986 indicated that court consent is required after a winding-up order has been made.

The Tribunal therefore held as a matter of law that the consent of the court was required following the appointment of the liquidator. It did not make any merits determination on the protective award claim itself. Instead, the claims were sisted to allow the claimants to make further submissions to the court for consent under section 130(2) of the Insolvency Act 1986.