Numerous businesses have sadly gone bust during the COVID-19 pandemic and, if you are amongst the many thousands of employees left high and dry, you should consult a solicitor without delay. A retail worker who did just that was awarded 90 days’ pay by an Employment Tribunal (ET) (McDonald v Debenhams Retail Ltd (In Administration)).

The woman was employed in the restaurant of a department store. She was placed on furlough as lockdown commenced and only became aware from media coverage that her employer, a national retail chain, had entered administration. She hoped that her job would be saved but was informed during a conference call that she and others were to be dismissed on grounds of redundancy with immediate effect.

She sought legal advice and launched proceedings against the administrators under the Trade Union and Labour Relations (Consolidation) Act 1992. Section 188 of the Act requires that, where dismissal of 20 or more employees is contemplated, employers must engage in consultation with appropriate employee representatives for a period of at least 30 days.

Ruling on the matter, the ET noted there were no such representatives with authority to speak for the woman in that she was not a member of a trade union recognised by the employer. No steps were taken to appoint or arrange the election of appropriate representatives and, as a result, there was no consultation whatsoever with affected workers, or anyone on their behalf, prior to their dismissal on the spot.

The ET was satisfied that the employer had entirely failed to comply with its legal obligations under Section 188 and made a formal declaration to that effect. There were no special circumstances that rendered it not reasonably practicable for the employer to meet those obligations. In making a protective award of 90 days’ pay in the woman’s favour – the maximum permitted under the Act – the ET noted that there was no relevant mitigation available to the employer.