Redundancy Rights - protective awards in redundancy

What are protective awards in redundancy?

Protective awards apply in collective redundancies and also in TUPE transfers. Basically, protective awards can be awarded by employment tribunals to employees in situations where their employer has failed to consult them when they were legally required to. The legal requirements for consultation are set out in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).

Whether individual or collective redundancies are being made by an employer, employees have certain redundancy rights. Protective awards are part of those redundancy rights. Under section 188 of the TULRCA, an employer has an obligation to consult its employees and/or their representatives when they propose to make redundancies of more than 20 employees within a 90 day period. The employer must explain why the redundancies are happening and when they will happen. This is in addition to other redundancy rights, such as allowing employees reasonable time off to look for alternative employment.

Redundancy Rights

If an employer fails to conduct proper consultation in these terms, then the affected employees could complain to an employment tribunal and ask for a protective award. A protective award can be given for various breaches of employees’ redundancy rights, which might be because the employer failed to begin the consultation early enough, or ended the consultation too early, or failed to conduct the consultation in a proper manner.

The employment tribunal can make a protective award of up to 90 days' pay for each affected employee. The employment tribunal will decide the amount of the protective award based on the individual circumstances of that workplace, including the extent of the employer’s breach of employees’ redundancy rights – a minor technical failure may not result in a protective award being made.

Failure to consult is not only potential grounds for a protective award, but can give rise to a claim for unfair dismissal. You should consult an employment solicitor for advice about making an unfair dismissal claim.

If a protective award was made in your favour but your employer fails to pay it, you can complain (individually) to an employment tribunal. An employment solicitor can help you to make this application for enforcement.