CABIN CREW of an airline that failed during the pandemic are set to receive a payment from the Government after their union-backed claim for a protective award succeeded. Each of the 900 employees could receive several thousand pounds, with the total sum awarded likely to exceed £6 million.
During 2020, Norwegian Air, which operated out of Gatwick, faced financial difficulties, in common with much of the aviation sector, as international travel all but dried up during the pandemic.
The airline indicated its intention to make staff redundant, but made little effort to comply with its duty to consult staff and their representatives about any redundancies, as they are obliged to do under s188 of the Trade Union & Labour Relations (Consolidation) Act 1992 (‘TULR(C)A 1992’).
The purpose of s188 TULR(C)A 1992 is to give employees and their representatives the chance to look at alternatives to dismissal and to try to mitigate the consequences of any dismissals. It is mandatory for employers to consult under this provision if they are planning to make 20 or more staff redundant in a period of 90 days or less.
If there is a failure to consult under s188 TULR(C)A 1992, the employees or their representatives can make a claim to an employment tribunal, which may make a protective award. This is a payment made to an employee who has been made redundant in circumstances where the employer has failed to consult appropriately.
The airline went into liquidation in January 2021 and its cabin crew, as well as pilots and other staff, were made redundant.
Unite the Union, representing some 900 long- and short-haul cabin crew, brought a claim for a protective award in respect of the airline’s failure to consult about the redundancies.
In this case, because the airline had gone into liquidation, the union had to bring its claim against both the airline (in liquidation) and the Secretary of State for Business, Energy and Industrial Strategy, which must step in to cover any award if the employer has gone out of business.
At a hearing in December 2022 in front of Tribunal Judge Overton, sitting with members, at East London Employment Tribunal, the Tribunal awarded the maximum protective award of 90 days’ pay for the long-haul cabin crew, upon finding that there had been no consultation with them by the airline before they were made redundant.
The Tribunal found that there had been some limited consultation with the short-haul cabin crew, but it was insufficient to meet the statutory test and so it awarded this group 63 days’ pay.
The total award is likely to amount to between £6m and £7m due to the number of cabin crew involved.
Unite the Union v (1) Norwegian Air Resources UK Ltd (2) Secretary of State for Business, Energy and Industrial Strategy, case no 3203831/2021
Catherine Urquhart represented Unite the Union, instructed by Spencer Wood of OH Parsons LLP
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