Calculating the protective award 




The purpose of a protective award is not to compensate employees for their loss but to punish the employer for failing to consult (Susie Radin Limited v GMB and others [2004] IRLR 400). For this reason, it is irrelevant whether employees lost out financially as a result of a failure to consult collectively. It makes no difference, for example, that they have found another job or received state benefits. As the award is punitive and not compensatory, what matters is the seriousness of the employer’s breach.




The award can be up to 90 days’ pay. Where there has been a complete failure to consult, the tribunal should start with the maximum award of 90 days’ pay and only reduce it if there are mitigating circumstances (Todd v Strain [2010] UKEAT 0057/09/1606, London Borough of Barnet v UNISON [2013] UKEAT 0191/13/1912). The 90-day maximum applies even if the minimum consultation period was 30 days (Newage Transmission v TGWU EAT/0131/05). The 90-day maximum award has remained unchanged despite the cut to the minimum consultation period from 90 to 45 days (see page 375).




Except where an employer is insolvent, protective awards are calculated using actual earnings and there is no statutory cap. This is a requirement of EU law and it means that especially in large-scale redundancies, protective awards can be very large indeed. The threat of a protective award can be an effective weapon to force a reluctant employer to consult properly with a recognised union. Employer pension contributions must be included when calculating a week’s pay for the purposes of a protective award, making the size of the potential award even greater (University of Sunderland v Drossou [2017] UKEAT/0341/16/RN).