Court of Appeal
Where an employer had failed to engage in any meaningful consultation before making redundancies, in breach of the Trade Union and Labour Relations (Consolidation) Act 1992 s.188, an employment tribunal was entitled to make a protective award for the maximum period under s.189 without regard to the fact that consultation would not have made any difference.
The appellant company (S) appealed against a protective award in the maximum amount made under the Trade Union and Labour Relations (Consolidation) Act 1992 s.189(2) for breach of the obligation to consult before making redundancies. S had manufactured clothing at a factory employing 108 people. There was a recognition agreement with the the first respondent trade union (GMB). The factory was closed less than four months after S had first indicated possible closure. GMB promptly sought a protective award. An employment tribunal (ET) held that S had failed to consult properly, in breach of s.188 of the Act. It further held that, despite the fact that consultation would not have made any difference to the end result and the dismissals were not unfair, a protective award should be made for the maximum period. The Employment Appeal Tribunal (EAT) held that the award was a just and equitable one for the ET to have made based on the clear lack of consultation during the relevant period. S submitted that the purpose of the protective award was compensatory and not punitive, and that the award made did not reflect the fact that consultation could not have made any difference.
HELD: The purpose of the protective award was to ensure that consultation took place, in accordance with the requirements of s.188, by providing a sanction against non compliance by the employer. While the sanction resulted in money being paid to the employees whose remuneration was affected, there was nothing in the statutory provisions to link the length of the protected period to any loss suffered by them. The focus was not on compensating the employees, since there were no individual awards, but on the default of the employer and its seriousness. It was that seriousness which governed what was just and equitable in the circumstances. In a case where there was no consultation the ET was entitled to start with the maximum protected period and see if there were any circumstances justifying a reduction, Talke Fashions Ltd v Society of Textile Workers (1978) 1 W.L.R. 558 disapproved; Spillers French (Holdings) Ltd v Union of Shop, Distributive and Allied Workers (1980) 1 All E.R. 231 considered; Middlesbrough Borough Council v (1) TGWU (2) UNISON (2002) IRLR 332 approved. The ET did not misdirect itself in law. The decision to make a protective award for the maximum period was not perverse given the finding that no meaningful consultation took place.
Counsel for the respondents: Philip Mead
 ICR 893
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