The answer to that question and with a huge sigh of relief is thankfully not, following the Supreme Court finding that an administrator of a company appointed under the Insolvency Act 1986 (“IA 1986”) is not an “officer” of the company within the meaning of section 194(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”).
If an employer intends to make 20 or more employees redundant, at one establishment, within a 90-day period, they must notify the Secretary of State at least 30 days before the first dismissal, as per Section 193(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”). Failure to adhere to this requirement is a criminal offence. This legislation has been of great concern to insolvency practitioners who are often dealing with companies in a precarious position and do not have the luxury of time to comply with Section 193(2) TULRCA.
On 1 November 2023, the Supreme Court has overturned the 2021 Divisional Court judgment in R (on the application of Palmer) v Northern Derbyshire Magistrates Court and another to hold that administrators do not fall within the meaning of a "director, manager, secretary or similar officer of the company" under s194(3) the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA 1992).
The Supreme Court judgment in the case of R (on the application of Palmer) (Appellant) v Northern Derbyshire Magistrates Court and another (Respondents) was handed down on 1 November 2023.
The Insolvency Service (IS), acting on behalf of the Secretary of State for Business and Trade, commenced disqualification proceedings against five former non-executive directors (NEDs) of Carillion plc in January 2021, following the compulsory liquidation of the Carillion Group in January 2018. Last month on the eve of trial, the IS discontinued its disqualification proceedings against the NEDs.
On 30 October 2023, HM Treasury (“HMT”) published 3 key updates on its proposed approach to regulating cryptoassets under the UK’s financial services regulatory framework, namely:
On 26 September 2023, our Insolvency and Asset Recovery team hosted a seminar explaining the emerging and developing types of disputes focussed on insolvent estate recoveries.
The Insolvency Service released the quarterly insolvency statistics for July - September 2023 on 31 October, painting a picture of growing corporate distress. This period saw a total of 6,208 company insolvencies, which together with Q2 2023 marks the highest number of quarterly insolvencies since the midst of the financial crisis in 2009.
Although a comparison with Q2 figures shows a slight reduction of 2% in overall insolvencies, the figures for Q3 showed a marked rise in both compulsory liquidations (14% up on Q2) and administrations (11% higher than Q2).
In a judgment that will be welcomed by insolvency professionals, the Supreme Court has today confirmed that administrators cannot be personally criminally liable for failing to notify the Secretary of State about plans for collective redundancies. This judgment follows an appeal by Robert Palmer against a finding that he was criminally liable for his failure to submit form HR1 in his capacity as the joint administrator of West Coast Capital (USC) Limited (USC).
What is the obligation?
The recent news on the BBC about the rise in insolvencies makes for tough reading. But those who are in business already know how difficult it is out there as they try to weather the trading conditions. Inflationary pressures are increasing the costs of providing goods and services to customers, eroding profitability.