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Collective Consultation: Compensation for Minor Breach

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Thanks to Paul Smith of Broadway House Chambers for preparing this case summary.

When assessing protective awards, should an Employment Tribunal's focus be upon compensating the employee or punishing the employer?

Punishing the employer, says the EAT in Shields Automotive v Langdon & Brolly.

In this case the employer had failed to comply with the duty to inform and consult transferring employees (regs. 13 and 14 of TUPE). An election was called at 2pm with voting to be completed by 5pm the same day. Mr Brolly would not be able to vote as it was his day off. No explanation was given for the haste and Mr Langdon chose not to exercise his vote in protest. The election produced a tie for second place and the employer intervened by selecting one of the tied candidates themselves.

The EAT reiterated that in such circumstances an employer's duty was to take reasonable steps to ensure that the election was fair, but that to satisfy this test an employer must ensure that employees have a proper opportunity to exercise their right to vote. 

Langstaff P stated that the purpose of the award is to ensure that employers generally are mindful of their obligations to consult and inform, particularly in circumstances in which there will inevitably be pressures often of time upon the employer to do the opposite.  However, where the employer has taken steps (albeit technically inadequate) to comply with the duty to consult, the punishment should not be as great as if the employer has taken no steps at all.  Accordingly the starting point will normally be less than the maximum of 13 weeks' pay.

Messrs Langdon and Brolly were awarded 2 and 3 weeks' pay respectively (the latter's award was reduced from 7 weeks' pay on account of it being manifestly excessive)