Enforcement — protective award
[ch 12: page 485]If the employer fails to inform or consult, an ET can make a protective award. Any claim must be made within three months (less one day) of the transfer date. ET judges can extend this deadline, but time extensions are rare. Acas Early Conciliation applies. See Chapter 14 for more information.
The ET can award up to 13 weeks’ pay, calculated in the same way as a protective award in the context of collective redundancy (see Chapter 11, pages 429-430). The size of the award should reflect the seriousness of the failure to inform and/or consult. Where there has been no consultation at all, the starting point should be 13 weeks’ pay (Sweetin v Coral Racing [2006] IRLR 252). If there has been some consultation, albeit inadequate, an ET need not necessarily start with the maximum (London Borough of Barnett v UNISON [2013] UKEAT 0191/13/1912).
A “week’s pay” is uncapped, except in the case of insolvency. In other words, the multiplier used to calculate the award is a full week’s pay (Zaman & others v (1) Kozee Sleep Products Limited (2) Dorlux Beds (UK) Ltd [2010] UKEAT 0312/10). It must include employer pension contributions (University of Sunderland v Drossou [2017] UKEAT0341/16/1306). This means that protective awards can be very substantial, especially when large groups of employees are affected. The risk of liability for a protective award can act as a real deterrent to employers tempted not to engage in effective consultation.