Punitive not protective!
by Philip
A protective award is now something of a misnomer following the Susie Radin case.
Where an employer fails to consult where the employer is proposing to make 20+ or 100+ employees redundant, then a Trade Union, an employee representative, or an employee can apply to a Tribunal for a protective award.
Under section 188 where there are more than twenty redundancies but fewer than 99 redundancies then the obligation to consult arises 30 days before the first proposed dismissal by redundancy.
Under section 188 where there are more than 99 redundancies then the obligation to consult arises no later than 90 days before the first proposed dismissal by redundancy.
If you are logical, an employee who is dismissed without collective consultation (where there are fewer than 99 redundancies in total) has missed out on at most a further 30 days pay as proper consultation collectively would have lasted a maximum of 30 days.
Being EU law, a more nuanced approach is taken where the failure by the employer to consult is looked at rather than the loss to the employee caused by that failure. If the failure to consult is total (ie there was no real attempt to consult collectively) then the starting point is a punitive penalty of 90 days protective award.
In the case reported here the Employment Appeal Tribunal awarded 90 days protective award in a case involving fewer than 99 redundancies, thus, arguably making the affected employees better off financially through their employer’s default. Had proper consultation taken place they would have gained a maximum of a further 30 days pay.
Perhaps the protective award should be re-named the punitive award as this seems to be a closer and more accurate description.
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