Remedies for failure to consult — protective award

If an employer does not consult adequately or at all with reps, a complaint can be made to the employment tribunal. It must be brought by whoever should have been consulted. The claim must be brought within three months of the last dismissal. The tribunal has discretion to 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 the award, individual employees can issue a claim in the employment tribunal for payment.

Where there are no elected employee representatives, an individual can only claim a protective award on their own behalf and not on behalf of other employees (Independent Insurance Co Limited (in Provisional Liquidation) v Aspinall [2011] UKEAT/0051/11).

Acas Early Conciliation and tribunal fees both apply to a claim for a protective award, even if the employer is insolvent. See Chapter 13 for information on bringing a tribunal claim.