Protective award

Compensation for an employer that skips, rushes or fakes collective redundancy consultation — worth up to 90 days' pay per employee, separate from redundancy pay itself.

What triggers an employer's duty to consult collectively in the first place?

Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 applies where an employer proposes to dismiss 20 or more employees at one establishment within a period of 90 days or less, for reasons not related to the individual employee — the classic case being a redundancy affecting a whole site or department. Below that threshold, the collective consultation duty does not apply, though individual consultation obligations may still exist separately.

How much notice does the employer have to give before the dismissals take effect?

Consultation must begin in good time before the first dismissal takes effect, with a minimum lead time set by law: at least 45 days where 100 or more redundancies are proposed, and at least 30 days where between 20 and 99 are proposed. These are minimums for when consultation must start, not fixed lengths the consultation process itself has to run for.

Who can bring a protective award claim?

Normally a recognised trade union, or elected employee representatives, bring the claim on behalf of the affected employees. An individual employee can only bring their own claim where there is no recognised union and no appropriate representatives, or where the complaint is specifically that the employer failed to arrange for representatives to be elected at all.

Is 90 days' pay automatic once a tribunal finds a failure to consult?

No. The tribunal has discretion up to a maximum of 90 days' pay per affected employee, and it looks at how serious the failure was — a complete failure to consult at all typically attracts something close to the maximum, while a partial or technical failure, where the employer made some genuine effort, often results in a lower award. Awards have also been reduced below what might otherwise be ordered where, for example, an insolvent employer could not realistically have kept trading long enough to complete a full consultation period.

Does a protective award replace a redundancy payment or an unfair dismissal award?

No, it is a separate, additional remedy. A protective award compensates for the employer's failure to consult properly — it does not replace statutory redundancy pay, and it does not prevent an employee from also bringing an unfair dismissal claim if the dismissal itself, separately from the consultation failure, was also unfair.

How long do affected employees have to bring a protective award claim?

The claim must generally be presented within three months of the date the last of the dismissals to which the complaint relates takes effect, though a tribunal can extend this where it was not reasonably practicable to claim in time. This time limit runs from the dismissal date, not from when the consultation failure first became apparent, so it is worth checking the position promptly rather than waiting.

Where this duty comes from, and what it protects

Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 requires an employer proposing to dismiss 20 or more employees at one establishment within 90 days or less to consult collectively with recognised trade unions or elected employee representatives, in good time before any dismissal takes effect. This sits alongside, not instead of, individual consultation with each affected employee. The duty exists because large-scale redundancies affect a workforce collectively — about selection criteria, timing, and ways of avoiding or reducing dismissals — in ways that one-to-one conversations with each employee cannot fully address.

Where the employer proposes 100 or more dismissals, consultation must begin at least 45 days before the first dismissal takes effect; for 20 to 99 proposed dismissals, the minimum lead time is 30 days. These are statutory floors on when consultation must start, designed to give representatives real time to engage before decisions are effectively final.

What a tribunal looks at when deciding the award

• 1 Was there a proposal to dismiss 20 or more at one establishment? This threshold question decides whether section 188 applied at all.
• 2 Did consultation happen, and when did it start? No consultation, token consultation, or consultation starting too late relative to the dismissal dates can all amount to a breach.
• 3 How serious was the failure? A complete failure typically attracts an award close to the 90-day maximum; a partial failure, where the employer made some genuine effort, often attracts less, reflecting the degree of default rather than acting as automatic compensation for loss.

Why this is separate from redundancy pay and unfair dismissal

A protective award is not a top-up to statutory redundancy pay, and it does not depend on the redundancy itself being unfair. It specifically compensates for the process failure — the employer not consulting properly — even where the decision to make redundancies was otherwise entirely legitimate. An employee can, in principle, receive statutory redundancy pay, a protective award for a consultation failure, and separately succeed in an unfair dismissal claim if the way they personally were selected or dismissed was also unfair — the three remedies address different wrongs and are not mutually exclusive.

An employer proposes to make 40 employees redundant at a single site within a six- week period, triggering the section 188 duty, but tells staff only one week before the first dismissals take effect, with no engagement with elected representatives at all.

Required minimum consultation period

Consultation actually given

7 days, no representatives

Likely protective award

Up to 90 days' pay per employee

Because consultation fell far short of the 30-day minimum and representatives were never involved, a tribunal would likely treat this as a serious or complete failure, supporting an award at or near the 90-day maximum per affected employee — separate from and in addition to any redundancy pay those employees are also owed.

Statutory redundancy pay

Continuous employment

Employment tribunal time limit

Trade Union and Labour Relations (Consolidation) Act 1992, section 188

Trade Union and Labour Relations (Consolidation) Act 1992, section 189

AEI Cables Ltd v GMB [2013] (EAT)

Protective Award — Employment Tribunal Glossary

What a protective award is, when the collective redundancy consultation duty applies, and how tribunals decide the up-to-90-day award for failing to consult.