Protective Award for Failure to Inform and Consult

The Employment Appeal Tribunal (EAT) held in Cable Realisations Limited (CRL) v GMB Northern (the Union) [2009] UKEAT/0538/08 that in setting a protective award for failure to inform and consult under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), the size of the protective award should reflect the fairness of the case. Therefore, an employer who breaches their obligation to inform and consult does not automatically face a protective award of 13 weeks' actual pay for each affected employee.

The Tribunal held that contrary to TUPE, CRL had failed to inform the Union long enough before a relevant transfer to allow consultation with the appropriate representatives to take place. The transfer of CRL's business took place on 3 September 2007. While the necessary information was given on 15 August, sufficient time before 3 September, this was not the case in reality as a factory shutdown occurred on 17 August which meant that 99% of the Union members were not at work during the relevant period. The Tribunal awarded 3 weeks' wages in respect of each affected employee. CRL appealed to the EAT.

The appeal was dismissed by the EAT which held that the Tribunal was correct in its application of TUPE and decision to award 3 weeks' wages in respect of each affected employee. The Tribunal's findings of fact had been properly taken into account and its award reflected the justice of the case.