Protective awards
Protective awards

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

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

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

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 representative (see Collective redundancy—statutory information and consultation obligations—Appropriate representatives)

  2. the relevant statutory requirements have been satisfied, if the complaint is that the employer has failed to comply with any of the requirements for the election of employee representatives

See Precedents:

  1. ET1 grounds of claim—protective award

  2. ET3 grounds for resisting claim—protective award

  3. ET1 grounds of claim—failure to pay protective award

Territorial scope of a failure to consult claim

TULR(C)A 1992, s 285 disapplies certain parts of TULR(C)A 1992 from employment where an employee works (or in the case of a prospective employee would ordinarily work) outside Great Britain. However, that territorial restriction does not