Twenty-three employees have won the maximum ‘Protective Award’ of 90 days extra pay because their employer failed to ‘inform and consult’ with them about their redundancies. Under S188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA), employers must follow collective consultation rules where it proposes to make over 20 redundancies in a 90 day period.
Consultations must start 30 days before the proposed dismissal of between 20 and 99 employees or 45 days for 100+ employees
(And it’s important to note that even if fewer than 20, or fewer than 100, employees are subsequently made redundant, the original start date for the consultations still applies. That is because the collective consultation rules are based on the number of dismissals being proposed at the beginning of the process).
In this case of Whalley & Others v The Bliss Space (Southport) Ltd (In Voluntary Liquidation) the employees were furloughed in March 2020 from their jobs at a theatre and conference centre. They discovered through their employer’s social media page that from May 2020 they would not be returning to work as their employer had gone into liquidation. It had been clear in the social media post that the company had been in discussion with the local authority about the impending closure, but neither the employees nor their union had been contacted before the decision was made.
The employment tribunal awarded each individual the maximum protective award of 90 days’ gross pay because Bliss Space was unable to demonstrate a ‘special circumstances’ defence which meant it was not reasonably practicable to consult in good time.
This case serves as a warning that if a business needs to make redundancies caused by the coronavirus pandemic related lockdowns that, on its own, is not enough to provide a special circumstances defence. Employers still need to comply with their obligations under S188 TULCRA.
If you have any questions about how to manage a collective redundancy process, or the special circumstances defence, our employment team is on hand to help.