By Michael O’Brien
Next month will mark the fifth anniversary of the commencement of the Debenhams strike. This battle saw hundreds of predominantly women workers engage in over a year of pickets and protests in response to their brutal mass layoff and the non-honouring of an enhanced redundancy package. On 7 March, the High Court overturned a meagre award won by the workers in the WRC almost two years ago.
The complaint originally heard at the WRC after the struggle concluded revolved around the company and the liquidator not meeting certain legal obligations regarding consultation and information in collective redundancy situations.
Complaints were made under two sections of the Protection of Employment Act, 1977. Section Nine provides for a 30-day consultation between an employer and employees and their representatives, which must commence in ‘good time’ once the employer is contemplating redundancies of a certain scale.
Section 10 obliges the company to engage meaningfully with the employees and provide relevant information. The whole purpose of this information and consultation process is to create the space for discussing alternatives to the scale of job losses and other mitigations.
Blatant breaches of the Employment Act
The workers made four complaints under Sections nine and 10 of the Act against both the employer and the liquidator. However, the WRC adjudicator decided that there was only one consultation process and that only two complaints could be heard. On legal advice, the workers accepted this aspect of the WRC’s original decision.
The WRC adjudicator, in the 2023 decision, upheld the complaints under both sections of the Act. He found that the process of consultation ought to have commenced immediately once the decision was made by the company on 9 April 2020 to make all staff redundant. Instead, it was only after the appointment of the liquidator on 17 April that what transpired to be a sham process unfolded.
The adjudicator likewise found that not all relevant information was provided at the request of the workers and the union. Specifically, the claim by the liquidator that the online business in Ireland and the stock in the stores was owned by the UK parent and therefore could not figure in a survival plan for the Irish operation was rightly challenged. The company ignored requests to provide the union with copies of its legal advice on these matters, copies of the lease agreements for the various stores and data on the performance of each of the stores individually.
The maximum four weeks’ pay for breaches of each of the two sections of the Act was awarded to Jane Crowe and all the workers, eight weeks’ pay in total.
Clear bias of the court system
The liquidator appealed this outcome to the Labour Court, and thus, the whole case had to be argued for a second time last year. The Labour Court upheld that a breach of Section 9 of the Act took place but bizarrely overturned the award made for the breach of Section 10 on the question of meaningful consultation, thus halving the WRC’s award.
Not content with this the company appealed the partial upholding of the WRC’s original award to the High Court on a point of law. In a 31-page judgement citing various case precedents Judge Barr effectively sided with the company’s narrative excusing the delay in the commencement of the consultation because of the Easter bank holiday weekend and describing email exchanges between the company and the union prior to the first meeting as effectively forming part of the consultation.
He disgracefully went on to conclude that there was no great additional distress caused by the company’s approach or detriment to possible outcomes by the delay. The reality is that had the workers side had access to the information sought at the beginning of the consultation process, before the decision was made to liquidate the company, there would have been a fighting chance to challenge the business case employed to justify the shut down and the non-honouring of the enhanced redundancy.
The Judge and the High Court are clearly remote from the reality of the struggle that was fought and the impact it had on the workers. The fact he clearly identifies with the company’s perspective is illustrative of a general bias in the court system.
The possibility of a further appeal by the workers’ side to the Supreme Court to restore the Labour Court’s finding and the partial award is still there, but contains the same risks of bias. That said it cannot be totally excluded that a favourable outcome could be obtained, as for example Unite the Union obtained in the Supreme Court last year when the High Court erroneously granted Jones Engineering an injunction against members picketing.
Struggle is key
As we said at the time of the original WRC award:
“The former Debenhams workers deserve every cent that can be obtained and more besides for the struggle they have waged. Favourable results can be obtained for workers individually and collectively at the WRC when adjudicators are presented with strong evidence and testimony.
“However, it takes on average a year for a case to go to hearing, sometimes a further six months to a year to be fully heard, and a further six months for decisions to be issued. This can then be appealed to the Labour Court adding a further 18 months to two years to the process.
“This is clearly less satisfactory than what can be won in the immediacy of a strike or struggle. The ruling itself is a vindication of the importance the workers placed on the stock, which was extremely valuable and which the company tried to pretend was beyond its reach.
“….Again, this underlines the importance of throwing everything into the struggle, a lesson the workers’ got but which needs to be heeded by the trade union movement as a whole.”
