Protective award

Case 5: The facts

An employer made around 70 of its staff redundant without any notice. A tribunal found that there had been a complete failure to consult under the collective redundancy provisions, and made a protective award of 30 days’ pay. One of the redundant employees appealed against the amount of the award.

The ruling

The Employment Appeal Tribunal said the tribunal had been wrong to award only 30 days’ pay. Although the consultation period differs according to the number of potential redundancies (it is 90 days if an employer is proposing to dismiss 100 or more employees, and 30 days if it is proposing 20 to 99 dismissals), there is no such distinction in the size of the protective award. The maximum protective award is 90 days; this is the starting point and should not be reduced unless the employer can show mitigation or special circumstances.

As the tribunal had found there to have been a “very grave breach” of the duty to consult, and had shown no reason to reduce the award, the correct award was 90 days’ pay (payable by the state as the company was in administration).