Mr J Campbell v Mr L McDonnell Mr D Stewart McGill & Co Limited (in administration) — 2020

This preliminary hearing, decided on written submissions on 22 April 2020 after an earlier hearing on 23 March 2020, concerned three linked claims against McGill & Co Limited (in administration). The tribunal accepted the claimants' written factual statements because the case was not defended. Each claimant sought a protective award under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, and one claim also included an unlawful deduction from wages complaint under Part II of the Employment Rights Act 1996.

The tribunal found that the respondent announced on 1 February 2019 that it was ceasing to trade, all employees were made redundant on 2 February 2019, no notice of termination was given, and the respondent went into administration on 6 February 2019. It held that the protective award claims were not presented within the primary three-month time limit in section 189 of the 1992 Act. The judge also said that, even if the effective date of termination were used instead, the claims were still out of time.

Applying the reasonably practicable test, and citing authorities including Palmer and Saunders v Southend on Sea Borough Council, Asda Stores Ltd v Kauser, Wall's Meat Co Ltd v Khan, Riley v Tesco Stores Ltd, Dedman v British Building and Engineering Appliances Ltd, and James W Cook & Co (Wivenhoe) Ltd v Tipper, the tribunal rejected each claimant's explanation for delay. Mr Campbell relied on his union, but the form he signed made clear that responsibility for issuing a claim remained with him and he then waited about four weeks after the union letter before starting early conciliation. Mr Stewart relied on a divorce, moving back in with his mother, and not knowing of the right to claim, which the tribunal held was not enough. Mr McDonnell relied on his union and a previous redundancy experience, but the tribunal held that he had not made timely enquiries or applied for assistance in time. The tribunal concluded that none of the claims met the statutory test and dismissed them for lack of jurisdiction.