Enforcement — protective award




If the employer fails to inform or consult reps (or individual employees if there is no rep), a tribunal claim can be made for a protective award. This must be made within three months (less one day) of the transfer date. As usual, there is discretion to extend this time, but time extensions are rare. Acas EC applies. See Chapter 14 for more information.




The tribunal can award up to 13 weeks’ pay, calculated in the same way as a protective award in cases of collective redundancy (see Chapter 11, page 383). The size of the award should reflect the seriousness of the failure to inform and/or consult.
Where there has been no consultation at all, the starting point should be the maximum 13 weeks’ pay (Sweetin v Coral Racing [2006] IRLR 252). If there has been some consultation, albeit inadequate, a tribunal need not necessarily start with the maximum (London Borough of Barnett v UNISON [2013] UKEAT 0191/13/1912).




A “week’s pay” is “uncapped” except in the case of insolvency. In other words, the award is of a full week’s pay (Zaman & others v (1) Kozee Sleep Products Limited (2) Dorlux Beds (UK) Ltd [2010] UKEAT 0312/10). It must include employer pension contributions (University of Sunderland v Drossou [2017] UKEAT0341/16/1306). Protective awards can be very substantial, especially when large groups of employees are affected.