Protective award for failure to consult collectively
[ch 11: page 429]Where collective consultation obligations are triggered and the employer fails to consult adequately or at all with reps, a complaint can be made to the ET. It must be brought by whoever should have been consulted within three months (less one day) of the last dismissal. The ET can extend this time limit if it was not reasonably practicable for the claim to be brought in time, but extensions of time are rare.
The ET can make a protective award, which is a sum of money paid in respect of each employee within the scope of the award who is dismissed for redundancy. If the employer fails to pay, individual employees can issue an ET claim for payment.
Where there are no elected employee representatives, an individual can only claim a protective award for themselves and not on behalf of any other employees (Independent Insurance Co Limited (in Provisional Liquidation) v Aspinall [2011] UKEAT/0051/11).
Acas Early Conciliation (EC) must be complied with before claiming a protective award. See Chapter 14 for more information.