Claimant v McGill & Co Ltd — 2020

The claimant, an apprentice plumber based in Dundee, was dismissed with the workforce when McGill & Co Ltd went into administration on 1 February 2019. The tribunal found that 345 employees were dismissed at the same time, that there had been no prior consultation, and that no employee representatives had been appointed or elected. The claimant was told at the meeting that the administrators would write to him about his entitlements, and he later received a letter and fact sheet referring to redundancy pay, holiday pay, unpaid wages and statutory notice pay, but not to any protective award claim.

The tribunal first considered time bar under s.189(5) TULR(C)A 1992. It applied the approach in Dedman v British Building and Engineering Appliances Ltd and found that the claimant was genuinely and reasonably unaware of his right to bring a protective award claim. It also found that the administrators' communication had misled him into believing the letter and fact sheet covered all his employment-related entitlements, and in particular that the notice-pay section suggested he would be contacted when he could apply. On that basis, it held that it was not reasonably practicable for him to present the complaint within three months and that he brought it within a reasonable time after learning how to proceed.

On the merits, the tribunal held that there had been no consultation whatsoever and no attempt to elect employee representatives, so the complaint under s.188 was well founded. It found no special circumstances defence under s.188(7). Applying Suzy Radin Ltd v GMB and others, it said the starting point was a full 90-day protective award and that there were no mitigating circumstances. The tribunal therefore made a protective award for the full 90 days, running from 1 February 2019, but it did not quantify the monetary sum in the judgment.