Claiming a protective award

If there are trade union or employee representatives, the claim must be brought by the relevant representative(s).

The only circumstance in which a claim can be brought by an individual affected employee is where:

• the claim relates to the employer’s failure to elect representatives; or

• there are no employee representatives.

An employee who brings an individual claim for failure to consult (i.e. where no representatives have been elected) can only claim a protective award for his own benefit and no-one else’s (Independent Insurance v Aspinall [2011] UKEAT/0051/11/CEA).

Where there are reps in place, whether union or non-union, an individual employee is not allowed to bring a claim for breach of the statutory duty to inform and consult (Northgate HR Limited v Mersey UKEAT/0446/06/DM). In this case, Mr Mersey argued unsuccessfully that the non-union “employee consultation council” installed by his employer lacked the independence of a trade union and that for him to be genuinely protected, he should be allowed to enforce the protective award provisions as an individual.

Rejecting his argument, the Court of Appeal confirmed that these provisions are primarily intended to deal with complaints about collective not individual issues. An individual with a complaint must bring it through his representative, and a tribunal will make “no value judgments” as to the independence or otherwise of non-union versus union reps. However, in a useful decision, supported by UNISON, Kelly v The Hesley Group Limited [2013] UKEAT/0339/12/ZT, an employer failed to satisfy the tribunal that its joint consultative committee, made up of elected, appointed and “co-opted” workers, had authority to represent the workers at risk of redundancy.