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Compensation for Collective Redundancy Consultation

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Thanks to David Leslie of Lyons Davidson for preparing this case summary

Is the starting point for compensation for failure to inform and consult in relation to a collective redundancy situation the statutory maximum?

No, holds the EAT in London Borough of Barnet v Unison.

The Trade Union and Labour Relations (Consolidation) Act 1992 imposes a duty on employers to consult relevant trade unions where they propose to dismiss as redundant 20 or more employees. The maximum penalty for breach is a protective award of 90 days' pay for each affected employee.

Barnet carried out some consultation but admitted a breach of its obligations in relation to agency workers.

The EAT referred to Susie Radin v GMB [2004] ICR 893, which said that where there has been no consultation, the starting point for compensation should be the maximum award before considering mitigating factors. This, said the EAT, did not mean that the starting point was the maximum where some consultation had taken place.

Therefore, even though the tribunal had awarded less than the maximum in this case, it had erred by stating that it started its considerations by looking at the maximum award.

The EAT also held that in relation to a TUPE transfer, the transferee, NSL, would be jointly and severally liable for compensation for failure to inform and consult and therefore refused to apportion liability between Barnet and NSL.