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More protective awards – consultation under TUPE
In another case dealing with the amount of a protective award, this time under the TUPE regulations, the EAT, in Shields Automotive v Langdon and Brolly, held that assessment of the amount of a protective award should be based on the concept of punishment for the employer rather than compensating the employee.
The employer failed to comply with the duty to inform and consult with transferring employees, mainly by the way in which the election of the representatives was conducted. One employee was unable to vote as it was his day off and the other refused to vote under protest because the voting was required with what was considered to be undue haste. While the employer had a duty to take reasonable steps to ensure the election was fair, part of satisfying this was to give the employees a reasonable time to exercise their right to vote. Three hours was not considered a reasonable time period.
The EAT held that the purpose of the award was to remind employers of their obligations to consult and inform; but where the employer had taken some steps to comply with its obligations, albeit not complete, the punishment should be less than where the failure was total. As such the starting point should normally be less than the maximum of 13 weeks pay, Mr Langdon and Mr Brolly were awarded respectively 2 and 3 weeks pay, the latter having been reduced from 7 weeks at appeal on account of being considered excessive.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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