In the last few years, the aspect of criminal law in employment matters has seen a renaissance. In respect of collective redundancy provisions there is a criminal offence in respect of failing to file an HR1 form. This can unknowingly affect appointed IPs.
Where an employer (or, by analogy, appointed IP) is proposing to make redundant 100 or more employees at one establishment in 90 days or less, or 20 or more employees at one establishment, there is a duty to notify the Secretary of State in writing either before giving notice to terminate or at least 45 days before the first dismissal.
An employer who fails to give notice commits an offence and is liable on summary conviction to a fine.
The level is the fine is now unlimited.
There was recently a high profile prosecution brought against the former directors of City Link who had gone into administration on Christmas Eve 2014. Immediate redundancies followed and the HR1 form was not filed. Whilst the directors were acquitted as they had not knowingly committed a criminal act as they had an honestly held belief that there was a possible purchaser for the company and that the subsequent redundancies had not been an inevitable part of entering administration, even the bringing of these prosecutions may impact IPs.
Although the courts will likely appreciate that many IPs will be faced with impossible situations and mitigation will likely be taken into consideration, this will in no way exempt IPs from their statutory duties.
All reasonably practicable steps should be taken to ensure compliance with the filing of the HR1 form.