Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The first respondent provided plumbing and electrical services. The business closed in September 2019 and all staff were made redundant. The claimants are making claims for protective awards as a result of the failure to consult with the trade union, Unite the Union, employee representatives or individual employees.
The issue arising was whether the respondent complied with its duties under Article 216 of the Employment Rights (NI) Order 1996. Additionally, the question was whether there were special circumstances rending it not reasonably practicable to comply with the requirements of Article 216.
Outcome:
An issue arose as to whether the employees were employed at one establishment, that being the headquarters of the first named respondent. This was on the basis that some of the employees, represented by the Union, would have gone there to pick up tools and receive their jobs but the majority of their work would have been at client sites. The Tribunal held that they were all employed at one establishment as there was no other distinct entity having a degree of permanence and stability.
The Tribunal noted that for special circumstances to be taken into account vis-à-vis the failure to comply with Article 216 that must be proven by the employers and the steps to mitigate those breaches. There was no evidence brought forward, nor were there representations, from the first respondent. Accordingly, the Tribunal made a protective award for each of the claimants for 90 days.
Practical Guidance for Employers:
In the case of a business stopping trading, there is still a requirement under Article 216 of the Employment (NI) Order 1996 to consult with employees and/or the recognised Union. This was not done here. Additionally, the first respondent did not make representations so the defence of special circumstances could not be successful. The learning point is that if a business is coming to an end, then seek advice on the steps that must be taken in relation to the employees of that business.
NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/
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