Protective awards
Protective awards

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Protective awards
  • Territorial scope of a failure to consult claim
  • Employer's defences
  • Sample wording for claims
  • Remedy
  • The amount of a protective award
  • Who is liable
  • Limitation
  • Recoupment
  • Contracting out and settling claims

Protective awards

This Practice Note examines claims for protective awards following an employer’s failure to carry out collective redundancy consultation under sections 188 and 188A of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992).

The statutory information and consultation obligations under TULR(C)A 1992 are intended to implement Directive 98/59/EC, the Collective Redundancies Directive (CRD). Domestic laws that have been made to implement UK obligations under EU law are retained EU law. For further information, see Practice Note: Brexit and IP completion day—implications for employment lawyers—Retained EU law.

Where an employer has failed to comply with the statutory consultation requirements under TULR(C)A 1992, s 188 or 188A (see Collective redundancy—statutory information and consultation obligations) a complaint may be presented to the employment tribunal. The proceedings may be brought by:

  1. the trade union, where consultation should have been with trade union representatives

  2. employee representatives, where they were elected and consultation should have been with them

  3. any of the affected employees, where employee representatives should have been elected but were not

For further information on representatives in the context of collective consultation, see Practice Note: Collective redundancy—statutory information and consultation obligations—Appropriate representatives.

The burden of proof is on the employer to show that:

  1. an employee representative had the authority to represent the affected employees, if a question arises as to whether or not any employee representative was an appropriate

Popular documents