Protective award

Case 4: The facts

After losing its two main customers, a company went into administration but continued to trade for a time in the hope that it would be sold as a going concern. When the final customer transferred its business, staff were told that they were redundant with immediate effect. The union had not been consulted about this, although it had been kept informed of the situation beforehand.

The union appealed against a tribunal's protective award of 70 days' pay for each employee, arguing that they should have received the maximum 90 days' pay because there had been no consultation over the redundancy decision.

The ruling

When deciding on the seriousness of a breach, the Employment Appeal Tribunal said, a tribunal can take factors into account that occurred before the proposal to dismiss. The employer had not acted deliberately or recklessly in failing to consult, and there were mitigating factors that allowed a reduction of the maximum award, so the tribunal had been entitled to act as it did.

Amicus v GBS Tooling Ltd UKEAT/0100/05 (reported in [2005] IRLR 683)