Advice to an Employee on Protective Awards
If your employer has failed to follow the correct procedures during a collective consultation process, you may be entitled to a protective award. Understanding your rights and how protective awards work can help you navigate this situation effectively. Here’s some guidance:
1. What is a Protective Award?
A protective award is a form of compensation that can be awarded to employees when an employer fails to meet their legal obligations regarding collective consultation. This typically arises in situations involving large-scale redundancies where the employer has not properly consulted employees or their representatives as required by law.
2. When Can a Protective Award Be Claimed?
A protective award can be claimed in situations where the employer:
- Fails to Consult: The employer did not engage in the collective consultation process when it was legally required (e.g., when proposing to make 20 or more employees redundant within a 90-day period).
- Inadequate Consultation: The employer did not provide sufficient consultation, such as failing to allow enough time, not involving the appropriate representatives (such as a recognised trade union or elected employee representatives), or not providing the necessary information about the redundancies or changes.
- Non-Compliance with Collective Redundancy Procedures: The employer did not comply with their statutory obligations under UK employment law concerning collective redundancies.
3. Your Rights as an Employee
- Right to Consultation: If your employer is proposing to make 20 or more employees redundant within a 90-day period, they are legally required to carry out a collective consultation. This includes discussing ways to avoid redundancies, reducing the number of redundancies, or mitigating the effects on employees.
- Right to Representation: During the collective consultation, you have the right to be represented by a trade union or elected employee representatives. If your employer fails to meet these obligations, you may be entitled to a protective award.
- Right to Compensation: If the employer has not complied with the consultation requirements, you can make a claim for a protective award, which can result in compensation of up to 90 days’ gross pay per affected employee.
4. Making a Claim for a Protective Award
- Time Limits: You must bring a claim for a protective award to an employment tribunal within three months of the date of your dismissal or the end of the collective consultation process.
- Who Can Claim: Any employee affected by the collective redundancy process who was not properly consulted can make a claim. This includes employees represented by a trade union or elected employee representatives, as well as individual employees if no collective consultation took place.
- How to Claim: Typically, your trade union or employee representatives will bring the claim on behalf of all affected employees. However, if no collective representation is available, you may bring the claim individually.
5. How Protective Awards Are Calculated
- Length of the Award: The maximum protective award is 90 days’ gross pay per affected employee. The employment tribunal has discretion to decide the length of the award, depending on the severity of the employer’s breach. In cases where the employer has completely failed to consult, the tribunal may award the full 90 days. However, if the employer attempted to consult but the process was deemed inadequate, the tribunal may reduce the award accordingly.
- No Obligation to Mitigate Losses: Unlike redundancy pay, employees do not have to show that they have attempted to mitigate their losses (e.g., by seeking new employment) in order to receive a protective award.
6. What to Do If You Believe You Are Entitled to a Protective Award
- Seek Legal Advice: If you believe your employer has failed to follow the correct procedures during the collective consultation, you should seek advice from a solicitor who specialises in employment law. They can help you determine whether you are entitled to a protective award and assist with making a claim.
- Engage with Your Union: If you are a member of a trade union, contact your union representatives as they can offer support and guidance on pursuing a protective award claim. They may also represent you and other affected employees in the employment tribunal.
- Document Everything: Keep detailed records of all communications and meetings regarding the redundancy process or collective consultation. This documentation will be useful if you need to provide evidence to support your claim.
7. Considerations
- Group Claims: Protective awards are often pursued as group claims, where the employee representatives (such as a union) make the claim on behalf of the affected employees. If you are part of a group facing redundancy, check whether your representatives are taking action and ensure your claim is included.
- Timing: Time limits for making a protective award claim are strict. You must file the claim within three months of the dismissal or failure of the consultation process. Missing this deadline may prevent you from receiving compensation.
8. Outcome of a Protective Award Claim
- Tribunal Decision: If the employment tribunal finds that the employer has breached its collective consultation obligations, they will order the employer to pay a protective award. The amount of the award will depend on the extent of the employer’s failure and could be up to 90 days’ gross pay.
- Enforcement: Once the tribunal has made its decision, the employer is legally required to pay the protective award. If the employer fails to pay, further legal action may be necessary to enforce the award.
Conclusion
Protective awards offer an important remedy for employees when employers fail to follow the correct collective consultation procedures. If you find yourself in this situation, ensure you understand your rights, seek appropriate legal or union advice, and act promptly within the required time limits to protect your entitlement to compensation.
