If an employer fails to consult appropriate representatives in a collective redundancy situation a tribunal can make a protective award of up to 90 days’ pay; or if they fail to inform and consult representatives prior to a transfer, it can award 13 weeks' pay. In London Borough of Barnet v UNISON, the Employment Appeal Tribunal (EAT) held that tribunals should not start with the maximum award and work down in a case where there has been some consultation.
Towards the end of October 2011, the London Borough of Barnet sent out a notice under section 188 of the Trade Union and Labour Relations Consolidation Act 1992 to the appropriate representatives, including UNISON, giving notice that just under 100 employees were at risk of redundancy at the end of March 2012. The council was also involved in carrying out two TUPE transfers - one of housing staff on 1 April from Barnet to Barnet Homes and one of parking staff from Barnet to NSL Ltd on 1 May.
In October 2011, the Agency Workers Regulations 2010 came into force which amended the statutory provisions in both the 1992 Act and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). These amendments required employers to provide information about the number of agency workers, where they were employed and the type of work they were doing. UNISON claimed that Barnet had failed to provide them with the information and that the employer was therefore liable for a protective award in relation to the collective redundancies and compensation in respect of the failure to inform prior to the transfers.
The tribunal agreed that Barnet was in breach of the regulations in relation to the redundancies and the two transfers. It regarded the breaches to be fairly serious and considered the information was relatively easy to produce, the union had requested it and it was central to the consultation process.
Referring to Susie Radin v GMB and ors, it accepted that it should only start with the maximum award if there was no consultation. Although that was not the case here (as there had been some consultation), the tribunal admitted that it was “not quite sure where we should start if we do not start at the maximum and work down” - in order to work out what was appropriate.
In the end, it decided to make a protective period of 60 days from 31 March 2012 in respect of the redundancies on the basis that the Council had failed to comply with section 188. As it had also failed to comply with regulation 13 of TUPE in relation to the housing transfer, it ordered the Council to pay compensation of 40 days’ pay. In relation to the parking transfer, it awarded compensation equivalent to 50 days’ pay.
The EAT allowed the appeal. Although the tribunal had had regard to Susie Radin, it was wrong to “start with the maximum [award] and work down” in a case where there had been some consultation. Even though it awarded less than the maximum, it was wrong in the way it had approached the issue.
In addition, it held that the tribunal was wrong to find the Council solely liable in relation to the parking transfer as the transferee - NSL Ltd - was jointly and severally liable for breach of the TUPE Regulations.
The EAT therefore remitted the case to be heard again by the same tribunal in relation to the approach it had taken to the amount of the protective award and compensation.
The EAT gave no clear guidance on the correct starting point when assessing the amount of a protective award and if the tribunal will, when it reconsiders the matter, come to a different conclusion.