Protective award for failure to consult collectively

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 tribunal. It must be brought by whoever should have been consulted within three months (less one day) of the last dismissal. The tribunal 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 tribunal can make a protective award, which is a sum of money paid in respect of each affected employee within the scope of the award. If the employer fails to pay, individual employees can issue a tribunal 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 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.