Protective awards are supposed to punish the employer

The following guidelines on calculating protective awards were established by the Court of Appeal in Susie Radin v GMB [2004] IRLR 400:

• the purpose of a protective award is not to compensate employees for any loss but rather to punish the employer for failing to consult;

• the tribunal should focus on the seriousness of the employer’s default, which may vary from a technical breach of the rules to a complete failure to consult;

• the deliberateness of the failure is likely to be relevant.

Where an employer has done nothing to comply with its duty to inform or consult, the tribunal should start with the maximum 90 days and then reduce it only if there are mitigating circumstances (Todd v Strain [2010] UKEATS/0057/09/BI).

Tribunals should always ask why the employer failed to comply with its obligations. For example, in AEI Cables Limited v GMB, Unite and others [2013] UKEAT0375/12/0504, an employer was forced to cease trading after receiving advice from its accountants on the risks of trading when insolvent, meaning that consultation became impossible. The EAT said this was a special circumstance capable of reducing the size of the award. However, since the employer carried out no consultation at all, a protective award of 60 days’ wages for each affected employee was still made.

The full 13 weeks can be awarded for a failure either to inform or to consult (Cable Realisations Limited v GMB Northern [2009] UKEAT 0538/08/2910).