Addleshaw Goddard

What is the starting point for calculating protective awards under TULRCA 1992 and TUPE 2006?

The Employment Appeal Tribunal (EAT) has held that an employment tribunal (ET) misdirected itself as to the correct legal approach to take on the question of calculating awards for failures to provide information in the context of a collective redundancy exercise and two TUPE transfers. Given that the employer had provided some information and conducted some consultation, the appropriate starting point for calculating the awards should not be the maximum possible award of 90 days’ pay under TULRCA 1992 (or 13 weeks’ pay under TUPE 2006). The maximum award should only be used as the starting point where the employer has taken no steps whatsoever to comply with its obligations (London Borough of Barnet v (1) UNISON (2) NSL Ltd).

On 1 October 2011, the Agency Workers Regulations 2010 came into force and amended both TULRCA 1992 and TUPE 2006. In summary, this meant that in the context of a collective redundancy or TUPE exercise an employer had to provide information to trade union and/or employee representatives about the agency workers it engaged, including: the numbers engaged; where in the business they were engaged; and the type of work they were doing. Where an employer fails to comply with an obligation to inform and consult under section 188 of TULRCA 1992, an ET has the power to make a protective award up to a maximum of 90 days’ pay. The position is similar in respect of a failure to comply with the information and consultation obligations under regulation 13 of TUPE 2006, where an award of up to 13 weeks’ pay can be made…

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