Debenhams workers have won a key legal battle in a challenge to their collective redundancies three years ago after a test case ended in an order for eight weeks’ pay for a breach of workplace rights.
The Workplace Relations Commission has ruled that their employer was late in starting consultations with them in April 2019 – and that the delay limited options to reduce the impact of the mass dismissals.
It also found the liquidators, Kieran Wallace and Andrew O’Leary, then of KPMG, had failed to provide “relevant information” to the Mandate trade union on the profitability of the stores, revenue from online trading and lease arrangements with the store’s landlords.
The findings are contained in a decision on claims by test case complainant Jane Crowe against Debenhams Retail Ireland Ltd, which was received by some former staff on Tuesday.
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Ms Crowe was the main test case for between 750 and 800 former staff represented by Mandate, who have referred complaints en masse under the Protection of Employment Act 1977, as amended by European Communities (Protection of Employment) Regulations, 2000.
At hearings last November and earlier this year, both sides were in a position to agree a timeline of events – but differed strongly on what information had to be given and what the law meant when it said consultation on redundancy had to start “in good time”.
Adjudicating officer Brian Dalton noted that there had “unquestionably” been a “strategic” or “economic” decision by the firm’s UK parent that it could not keep funding the Irish arm on April 8th, ahead of the first consultation eight days later.
He said the “fragility” of the business in the context of public-health measures and the loss of financial support from the UK demanded that consultation should have started “no later” than April 9th, and that to get going on the 17th “was not in good time”.
At hearings last October and earlier this year, the tribunal was told that letters sent by Mandate’s then-divisional organiser Gerry Light to the firm outlining the requirement for consultation “fell on deaf ears”, a claim denied by the liquidators.
“If it [the consultation] was just a box-ticking exercise we wouldn’t have got near the level of meetings and correspondence we had,” said Mr O’Leary, adding that their aim was to save “some or all” of the Irish business.
He said Mr Light had been given “everything that was asked for” except for the details of some landlords, who he said were not identifiable on privacy grounds.
“Debenhams and the liquidator approached this from the beginning as a fait accompli,” said the trade union’s representative, Michael Meegan. “All information shared with Mandate was after the decision was made.”
“When Mr Light says he wants more information – in my submission he wasn’t entitled to all the information,” said senior counsel for the respondent Kelley Smith SC.
In his decision, adjudicating officer Mr Dalton found “meaningful information was not shared” and that there was “no material change” to any element of the redundancy plan as it was first set out, nor any “mitigation to limit the effects”.
“While that does not mean with certainty that no meaningful consultation did occur, it is more likely that is so,” he wrote.
Mr Dalton found the employer had committed two breaches of section nine of the Protection of Employment Act, on the timeliness of the consultation, and two breaches of section 10, on the provision of information.
He awarded eight weeks’ pay for each breach, a sum of €2,280 for Ms Crowe, who was earning €285 weekly as a part-time retail assistant prior to the redundancies.
