Protective Awards Following A Failure To Collectively Consult

June 21st 2011

In the case of Independent Insurance -v- Aspinall the Employment Appeals Tribunal (EAT) has clarified an important point in respect of protective awards and collective consultation. It has held that where an individual Claimant seeks a protective award under s188-189 Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A), the Employment Tribunal only has jurisdiction to make an award in the individual Claimant’s favour and cannot make an award that benefits other ‘affected’ employees if they are not a party to the claim. /p>

In this case the Respondent was an insurance company which went into provisional liquidation in 2001. The Respondent had some 1500 employees, 351 of which were based at the Respondent’s offices in Cheadle. The Respondent failed to comply with its obligations to consult and provide information to either employee representatives or Trade Union representatives, or to arrange the necessary elections, as required by TULR(C)A. The Claimant was successful at the Employment Tribunal and received a protective award of 90 days remuneration. However, the Employment Tribunal also went on to order that the Respondent pay all the other employees at the Cheadle office who were also dismissed as redundant, a protective award. This is despite these employees not being party to the claim.

On appeal, the EAT limited the scope of the protective award to the Claimant only. The EAT held that only the Claimant should receive the benefit of any protective award. The EAT also went on to state that the representative rights given to Trade Unions and representatives under s188-189 TULR(C)A, are given only to the Trade Unions and representatives, and only they may apply to enforce those rights.

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