More than 20 employees of the respondent company, including the claimant, were dismissed by reason of redundancy. The tribunal was satisfied that no efforts were made, by or on behalf of the Company, in connection with those dismissals to comply with the duties imposed by Article 216 of the Employment Rights (Northern Ireland) Order 1996. It was also satisfied that no trade union was recognised in respect of any part of the relevant workforce nor did an employee forum exist.

It was held that no worthwhile consultation was carried out with any workers' representative. The employer has not shown that there were any special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of Article 216. In any event, the employer has not shown that it took such steps, towards Article 216 compliance, as were practicable.

It was the tribunal’s determination that a protective award should be made to the claimant and all of the other employees who were dismissed on the same date. The case of Smith v Cherry Lewis Ltd (in receivership) [2005] IRLR 86 proved instructive as that case confirmed that a protective award should also be made in respect of other employees. Therefore, it would apply in relation to everybody who was dismissed by reason of redundancy, in circumstances in which the collective consultation duties had not been observed. 

Practical lessons 

As held in Smith, tribunals are not supposed to take into account irrelevant factors such as the insolvency of the employer, their inability to pay and the likelihood that the government would have to intervene. The overarching consideration for a tribunal must be to approach the concept of a sanction not in a retributive manner but ‘rather than a punitive or a dissuasive sense’. This case is illustrative of this ethos and, if nothing else, affirms the established case law.

As ever, full case decisions for NI cases are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/