A protective award is supposed to punish the employer

The purpose of a protective award is not to compensate employees for the loss they have suffered, but rather to punish the employer for failing to consult. This was established in Susie Radin v GMB [2004] IRLR 400, a case brought by the GMB when manufacturing firm Susie Radin failed to consult adequately over proposed redundancies. The Court of Appeal used the case to lay down guidelines for protective award claims:

• the purpose of a protective award is to punish the employer, not to compensate employees;

• the tribunal should focus on the seriousness of the employer’s default;

• the default may vary in seriousness, from a technical breach of the rules to a complete failure to consult;

• the deliberateness of the failure may be relevant; and

• especially where there has been no consultation at all, the tribunal should normally use the maximum 90 days as a starting point and then see whether there are any mitigating circumstances to justify reducing it (Todd v Strain [2010] UKEAT 0057/09/1606).