The company made redundancies but failed to carry out any effective or honest consultation. The tribunal awarded the maximum 90 days protective order. The company appealed saying that it had given the employees greater notice than was strictly due.
Held: The purpose of the order was punitive and therefore was not affected by the actual notice given by the employer. The section was intended to give effect to the European Directive, which required some penalty for non-compliance. The discretion given to the court was a judicial discretion to be exercised according to proper legal principles. The proper approach was to start with the maximum award and to reduce it where mitigation was found to justify a reduction.
Lord Justice Laws, Lord Justice Peter Gibson, Lord Justice Longmore
[2004] EWCA Civ 180, Times 16-Mar-2004, Gazette 18-Mar-2004, [2004] IRLR 400, [2004] 2 All ER 279, [2004] ICR 893
Bailii
Trade Union and Labour Relations (Consolidation) Act 1992 189(2), Trade Union Reform and Employment Rights Act 1993, Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995, Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999
England and Wales
Citing:
Appeal from – Susie Radin Limited v GMB and others EAT 24-Jun-2003
EAT Redundancy – Protective award . .
Cited – Association of Patternmakers and Allied Craftsmen v Kirvin Ltd EAT 1978
The court discussed the punitive nature of a protective award made where a company failed to consult on redundancies: ‘A Tribunal, however, is specifically enjoined to determine the [protected] period and so the amount of the award by paying regard . .
Cited – Commission v United Kingdom (Judgment) ECJ 8-Jun-1994
ECJ Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for . .
Disapproved – Talke Fashions Ltd v Society of Textile Workers EAT 1978
The employer announced the closure of two factories and the redundancy of the workforce, at one factory in 15 days’ time and, at the other, in 63 days’ time. There was no consultation. The employer appealed a 60 day protective award.
Held: . .
Cited – Joshua Wilson and Bros Ltd v USDAW 1978
Redundancy consultation – protective award . .
Cited – TGWU v Gainsborough Distributors EAT 1978
Redundancy consultation – protective award . .
Cited – Clarks of Hove Ltd v Bakers’ Union EAT 1978
Protective award – redundancy consultation. Kilner Brown J discussed what was meant by special circumstances by comparison with disqualification as a driver and the Road Traffic Acts where ‘special reasons’ have been held to mean ‘special to the . .
Cited – Spillers French (Holdings) Ltd v Union of Shop, Distributive and Allied Workers (USDAW) EAT 1979
The employer closed its bakeries and made redundancies, but without consultation. The ET decided it could make a protective award even if none of the employees had suffered any loss because the redundancies must follow.
Held: In the . .
Cited – Polkey v A E Dayton Services Limited HL 19-Nov-1987
Mr Polkey was employed as a driver. The company decided to replace four van drivers with two van salesmen and a representative. Mr Polkey and two other van drivers were made redundant. Without warning, he was called in and informed that he had been . .
Cited – GMB v Rankin and Harrison EAT 1992
The proper approach when setting a protective award for non-consultation was to start with the maximum period and to make allowance according to any mitigation found. . .
Approved – Middlesborough Borough Council v TGWU EAT 2002
The EAT discussed the need to focus on the seriousness of the employer’s default in complying with the mandatory obligation to consult employees before making redundancies: ‘The duties under the section are mandatory. It is not open to an employer, . .
Cited by:
Cited – Unison v Leicestershire County Council CA 29-Jun-2006
The council had dismissed all workers within a group of employees, and invited them to re-apply for their jobs. The council now appealed a protective award made on the basis that there had been inadequate consultation with the union.
Held: The . .
Cited – Haine v Secretary of State for Business Enterprise and Regulatory Reform and Another; Day v Haine CA 11-Jun-2008
Former employees had obtained a protective award against the company for failing to consult on the impending redundancies and submitted proofs of debt to the liquidator who sought guidance from the court. The judge had held that since the Act . .
Cited – Amicus v Irlandus Circuits Ltd NIIT 25-Apr-2006
The unanimous decision of the tribunal is that the respondent failed to comply with its duty to consult under Article 216 of the Employment Rights (Northern Ireland) Order 1996 and the members of the claimant union are entitled to a protective award . .
Cited – Evans and others v Permacell Finesse Ltd EAT 23-Oct-2007
EAT Protective award
When considering the protective award to the Claimant for grave failure by the Respondent in administration to comply with the regime relating to proposed redundancies, the Employment . .
Cited – Cranwick Country Food Plc v GMB Trade Union EAT 6-Sep-2005
EAT Tribunal correct that consultation about the correspondence of factory closure should have taken place immediately after closure plans announced before contracts exchanged on a new site. Securicor and Susie . .
Cited – Sweetin v Coral Racing EAT 20-Dec-2005
EAT Claimant sought compensation for unfair constructive dismissal and failure to consult prior to a TUPE transfer of a bookmaker’s business for which the claimant worked. Her contract of employment described her . .
Cited – UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area) and Another EAT 27-Sep-2007
The employer appealed against a protective award made for failing to consult the union on prospective redundancies.
Held: The appeal failed. The duty to consult arose as soon as the redundancies were fixed as a clear, even if there had been . .
Cited – Industrial Chemicals Ltd v Reeks and others EAT 7-Jul-2004
. .
Cited – Newage Transmission Ltd v Transport and General Workers Union and others EAT 25-May-2005
EAT Redundancy – Protective award – adequacy of reasons (BARKE) – maximum protective award for redundancies where 20 – 99 employees involved – TULRCA s189(4) – vires of s.1 1925/99. . .
Cited – Smith, and Moore v Cherry Lewis Ltd (In Receivership) EAT 5-Nov-2004
EAT Failure to consult regarding redundancies. Protective Award and insolvent employer. Nature and purpose of ‘sanction’ of protective award. Effect of guidance of Susie Radin Ltd v GMB and Others [2004] ICR 893 . .
Cited – Amicus v GBS Tooling Limited (In Administration) EAT 18-Apr-2005
EAT Redundancy – Protective award. . .
Cited – Alcock and others v Donaghadee Carpets Ltd and others NIIT 14-Sep-2005
. .
Cited – Communication Workers Union v Trivirix International Ltd NIIT 30-Jul-2007
. .
Cited – Leicestershire County Council v Unison EAT 2-Sep-2005
EAT Redundancy: Protective Award
Employment Tribunal correctly applied the judgment in Susie Radin v GMB [2004] ICR 893 in its approach to the calculation of a protective award for one group of workers, . .
Cited – Casson and Another v The Law Society Admn 20-Oct-2009
Two solicitors had been made bankrupt and then discharged from bankruptcy. They suffered adjudications by the SDT awarding compensation for matters occurring before the bankruptcies. They appealed, saying that the awards were bankruptcy debts from . .
Cited – Cable Realisations Ltd v GMB Northern EAT 29-Oct-2009
The company appealed against the upholding of the union’s claim that the company was in breach of the regulations. The company was to close its factory and decided at first to begin consultations for redundancy, but then looked for a buyer for the . .
Lists of cited by and citing cases may be incomplete.
Employment, Damages
Leading Case
Updated: 02 November 2021; Ref: scu.193904