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In the case of Evans & Ors v. Permacell Finesse Ltd JUDGE McMULLEN in the EMPLOYMENT APPEAL TRIBUNAL has overturned a decision of the Employment Tribunal as it misapplied the law in granting a protective award of 30 rather than 90 days.

A protective award is given to penalise employers who in proposing to make redundancies fail, in regard to the Trade Union and Labour Relations (Consolidation) Act 1992 section 188, as amended from 1 November 1999 by the Collective Redundancies and Transfer of Undertakings Protection of Employment (Amendment Regulations) 1995 and 1999, to provide information in advance and consult appropriate representatives.

Applications are usually made by a representative to an Employment Tribunal.

The legislation states that:

"(1) Where an employer proposing to dismiss as redundant 20 or more employees at an establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be affected by the proposed dismissals or who may be affected by measures taken in connection with those dismissals.

(1A) The consultation period shall begin in good time and in any event -

(a) where the employer is proposing to dismiss 100 or more employees … at least 90 days, and

(b) otherwise at least 30 days

before the first dismissal takes effect"

The obligation is to consult appropriate representatives and where there are none an an employer must conduct elections so that there can be such representatives with regard to the company's provision of information and the consultation.

In his judgement, JUDGE McMULLEN stressed that a 90 day protective award is the starting point. Mitigating factors serve to reduce the 90 days. As there was no attempt here to comply with the law, there was no mitigation, and therefore the full award applied.