This document is intended to provide brief guidance on Protective Award claims for ex-employees of Bardsley Construction Ltd who have been made redundant.
What is a Protective Award?
If an employer proposes to make 20 or more employees redundant at one workplace it must inform and consult workplace representatives. Consultation must last for a minimum of 30 days (where between 20 and 99 redundancies are made) or 45 days (where 100 or more redundancies are made). This is known as a “collective consultation”.
If the employer fails to comply with those duties, a “protective award” can be made, which is the name for the compensation payable to each redundant employee.
Protective Award compensation isn’t the same as notice pay or redundancy pay – it’s a claim for additional compensation for the lack of information and consultation.
Am I eligible to bring a Protective Award claim?
To be eligible you must have been an employee (not self-employed) and you must be 1 of 20 or more made redundant (or to be made redundant shortly) at a single workplace (or “establishment”).
What if I was field-based?
If you were field-based or worked across different sites, you might be eligible to make a claim depending on the facts of your case. It depends on the nature of your role, the number of individuals that work in the same way and how your workplace (establishment) is defined.
What if representatives were elected?
If representatives were elected for redundancy consultation or there was an existing employee forum or recognised union, the representative/s might have to pursue the Protective Award claim for you. You must therefore identify whether representatives were in place, if so, and make sure they join you in making a claim.
Do I need to have been employed for a particular length of time?
These claims don’t depend on your length of service – you might only have been employed a matter of weeks before being made redundant and it wouldn’t matter.
When must the claim be brought?
A claim must generally be made to an Employment Tribunal within 3 months (less a day) from the date you were made redundant, subject to any extension of time that might be granted for completing ACAS Early Conciliation within that period.
If your claim isn’t lodged in time, it could automatically fail. You must therefore act quickly.
If I am successful, what am I likely to recover?
The maximum award an Employment Tribunal can make is 90 days’ gross pay but this can be reduced in certain circumstances.
Where the company is insolvent, it’s likely that only a proportion of the compensation awarded by the Tribunal will actually be recovered via the government’s Insolvency Service (see below).
What if my employer is insolvent?
In cases of insolvency the government’s Insolvency Service can pay Protective Award compensation out of the National Insurance Fund but only if you have a Tribunal judgment. The amount is limited to a maximum of 8 weeks’ gross pay (currently capped at £525 per week if made redundant on or after 6 April 2019), less amounts already paid to you any arrears of pay.
How can Morrish Solicitors help me?
We are national experts in these claims. We represented 260 ex-CityLink employees, who were each awarded 90 days’ pay (BBC News, ITV News) and we’ve had success in other large protective award claims such as Phones4u (Yorkshirelegalnews), Turners Fine Foods, Paperlinx, Austin Reed, Maplin, Poundworld and others. We are currently pursuing many other claims against Thomas Cook and 3aaa.
These claims are complex and not widely known or properly understood. There are also a number of procedural and technical pitfalls that could lead to your claim being rejected. If the claim is defended (for example because of “special circumstances”) or you can’t secure permission to proceed, you could lose altogether. The process of securing compensation can also be time consuming, often taking up to 18 months or more. We can handle the whole Tribunal and/or Court process for you from start to finish, making sure you have the best chance of winning your case.
We always recommend seeking legal advice and representation when pursuing these claims.
What about fees?
Legal fees and expenses are only payable at the end of the case, from the compensation you recover. Once we know how many people are interested in pursuing the case, we will confirm the % fee and expenses to be deducted from each person’s compensation. Each person contributes to the overall costs. However, the more people we have in the litigation group, the lower the % we charge and the lower each person’s contribution to costs will be. If you lose, you don’t pay anything.
Completion of our online questionnaire allows us to keep track of numbers and secure the basic information we need for this claim. We tend to allow a period of 2 weeks for everyone concerned to have the opportunity to contact us. At that point, once we have an idea of the number of people interested, we’ll contact you with confirmation of the % chargeable and anticipated costs.
What if I am a member of a Trade Union or part of a bargaining unit?
If you are a trade union member you must contact your union and seek their support in pursuing a claim. Trade union membership is by far the best way of funding these types of claim, as legal assistance is usually a benefit of membership and you won’t therefore have any fees to pay.
You must let us know if trade unions operate within the company generally. We need to check whether you were part of a trade union bargaining unit as it may impact on how the claim can be pursued.
Complete our Protective Award questionnaire
If you would like us to help you with a potential claim, please complete our online Protective Award questionnaire as soon as possible and by no later than 29th January 2020. If you have any questions contact Daniel Kindell or email email@example.com.
There is a time limit of 3 months (less one day), within which to pursue this claim in the Employment Tribunal, which is likely to run from the date your employment ended. This is subject to any extension through use of the ACAS Early Conciliation process.
Completion of this questionnaire is merely an expression of interest in this claim, and not a guarantee we will lodge your claim for you. We will write to you with further information once we received your response.
We will only lodge an Employment Tribunal claim for you if funding arrangements are in place and if we have written to you to confirm we will do so. Until that time, it remains your responsibility to lodge proceedings within the appropriate time limits.