Ms Lorna Hutchison and others v No appearance or representation Secretary of State for Business, Energy — 2023

The case concerned 20 employees of Tayprint Ltd, all dismissed with immediate effect for redundancy on 26 August 2022 after the business ceased to trade. The Tribunal found that there had been no prior warning, no invitation to elect employee representatives, and no consultation under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. The claimants therefore sought a protective award. The first respondent was in liquidation and did not appear; the Secretary of State also did not appear at the hearing but provided written submissions.

A preliminary issue was whether the claims were time-barred because early conciliation did not begin until 12 December 2022, after the dismissals of 26 August 2022. Applying the reasonable practicability test and section 292A of the 1992 Act, the Tribunal accepted that Mr Bolling had made a mistaken but not unreasonable assessment of the time limit, including because he understood the period to run from the winding-up date and was waiting for the RPS response while the claimants’ employee status and entitlement were being checked. It held that it was not reasonably practicable to commence early conciliation timeously, and that once the RPS response was received, early conciliation was started within a reasonable period.

The Tribunal then considered section 130(2) of the Insolvency Act 1986 and held that, following the appointment of provisional and then joint liquidators, the claims could not proceed without the consent of the court. It preferred the reasoning in Carr v British International Helicopters Ltd over the contrary argument based on Hill v Black, and concluded that it was required to sist the proceedings pending court consent. The Tribunal said that, subject to that consent, a protective award for a protected period of 90 days from 26 August 2022 would be appropriate.