protective award

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An award made by an employment tribunal ordering an employer to continue to pay wages for a “protected period” to employees who have been made redundant in breach of the consultation requirements laid down in the Trade Union and Labour Relations (Consolidation) Act 1992 (see redundancy). When an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, he must consult with appropriate representatives of the affected employees. Consultations must begin within good time, and in any event 90 days before the first dismissal takes effect (if the employer is proposing to dismiss 100 or more employees within the 90 days) or at least 30 days beforehand (if the employer is proposing to dismiss between 20 and 99 employees). Failure to comply with these requirements gives a recognized trade union, an elected employee representative, or an affected employee a right to apply to an employment tribunal. In the absence of special circumstances rendering it not reasonably practicable to comply with these requirements, the employment tribunal is empowered to make such a protective award. It has discretion regarding the duration of the protected period, subject to a maximum of 90 days. The Act gives the tribunal guidance that the protected period should be just and equitable in all the circumstances having regard to the seriousness of the employer's default. Each employee covered by the award is entitled to one week's pay for each week of the protected period. If the employer fails to make any or all of the payments due for this period, the individual employee may complain, within three months, to an employment tribunal, which may order payment (Susie Radin Ltd v GMB [2004] EWCA Civ 180, [2004] ICR 893).

Subjects: Law.

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