Individuals can not bring a claim for a Protective Award
by Philip
In a recent decision the EAT in Mercy v Northgate HR have held that individuals do not have locus standi (the right to bring a claim) for a protective award where they were represented by appropriate representatives during a collective consultation period that was found to be defective by the Tribunal.
The EAT say that only the appropriate representatives can bring such a claim in these circumstances. We disagree with this decision. What motivation or ability do unpaid, usually (legally) unqualified elected representatives have to bring a claim for a protective award on behalf of their dismissed colleagues? We think not a lot, which means if individuals can not stand up for themselves by claiming as individuals, the threat of the protective award becomes considerably less of a threat to employers! It also leaves employees without a remedy (except possibly by suing the employee representatives in negligence for not bringing a section 189 claim). Of course Unions would be more likely to bring a claim, but as most of the private sector UK workforce is not unionised, this does not help most employees. Will this decision go to the Court of Appeal? Watch this space!
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I always wonder about the point of standing rules, because the evidence is that practically no-one launches vexatious claims where there isn’t a real issue, and those who do, litigants in person, are rare and not easily disposed of anyway.
Marcin Tustin said at March 29th, 2007 at 4:09 pm
Generally, employees can bring claims about matters that affect them. s.189(1) TULR(C)A 1992 (on the interpretation in this case) prevents employees complaining about something that directly affected them (i.e. inadequate collective consultation) whether the claim is vexatious or not. I struggle to think of other examples where an individual affected by a breach of his rights does not have locus standi.
Liam said at March 29th, 2007 at 5:49 pm
Where they were represented by appropriate representatives during a collective consultation. If this was done though not at the request or consent of the individual do their rights not stand.
Clive J Osborne said at April 11th, 2007 at 9:06 pm
Appropriate representatives are elected by employees. If all employees refused to elect representatives, there would be none and the employer would need to provide s.188(4) TULR(C)A 1992 information to each individual employee. If sufficient employees voted for the appropriate representatives, the representatives represent all employees of the same description (i.e. in our view, all those affected by the Redundancy process) - including those who either chose not to vote or voted against the successful candidates.
Liam said at April 12th, 2007 at 7:51 am