We acted unlawfully, but we’d do it again.
The CEO of P&O Ferries, Peter Hebblethwaite, confirmed at a hearing of the Transport Committee and Business, Energy and Industrial Strategy Committee of 24 March 2022, that his organisation broke the law in sacking 800 workers via a pre-recorded zoom message.
Where an employer proposes mass redundancies, they are under a legal obligation to consult with appropriate representatives, in advance, with a view to avoiding or mitigating the impact of proposed redundancies. In this case, P&O should have consulted with the RMT and Nautilus unions. The employer is also under a legal duty to notify the Department for Business, Energy and Industrial Strategy (or the equivalent authority in the country where the vessel is flagged) in advance of making these dismissals.
The question now concerns what legal action P&O will face as a result of their actions. There is a potential criminal sanction for company directors where they do not comply with the duty to advise BEIS in advance about proposed mass redundancies. However, P&O employed their staff on ships which were flagged in Cyprus, Bermuda and the Bahamas thereby giving them a potential loophole to escape criminal sanctions.
What is not in doubt is that P&O’s failure to consult with the trade unions gives the union the option of lodging claims for ‘protective awards’ on behalf of their members. If successful, P&O could be forced to pay up to 90 days’ gross pay to each affected employee. Individual employees may also choose to challenge the fairness of their dismissal on an individual basis, which could potentially result in hundreds of cases being pursued at the employment tribunal.
From the evidence given by P&O, it appears clear that they were fully aware of their legal obligations, however, they chose not to comply with the law.
Mr Hebblethwaite’s evidence regarding settlement offers indicates that they hope to ‘buy out’ any claims individual employees may have, to prevent matters from being litigated in the Employment Tribunals. In our experience, such offers tend to come with extremely restrictive strings attached, namely that the employer seeks to prevent their former employee from discussing their termination from the business and from making any negative or pejorative statements about their former employer, now, or at any time in the future.
The clandestine nature of P&O’s handling of this affair causes considerable concern. The failure to follow any sort of process whatsoever meant the unions were unaware of the organisation’s intentions and so were prevented from taking any pre-emptive legal action to stop P&O from breaking the law. Moreover, P&O are offering settlement payments without admission of liability and in order to receive such a payment, they require these employees to keep the details confidential and to refrain from ever making any disparaging or derogatory comments about their former employer.
P&O’s actions in the current matter have shown the limitations of the existing law and that unscrupulous employers can choose to evade their legal responsibilities, and then seek to buy the silence of their former employees. The Government has indicated that it is prepared to act…but will it?
Blog by Paul Deans, Employment Solicitor
