This document is intended to provide brief guidance on Protective Award claims for ex-employees of Harvard Technology.
What is a Protective Award?
If an employer proposes to make redundant 20 or more employees at one establishment (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) and must last for a minimum of 45 days (where 100 or more redundancies are made).
A protective award is an award of up to 90 days’ gross pay per redundant employee where the employer fails to inform and consult for the minimum periods.
It is not the same as a claim for notice pay or redundancy pay – it is a claim for additional compensation for the lack of advance notice of redundancies and the lack of consultation with representatives.
Am I eligible to bring a Protective Award claim?
Yes, if you are one of 20 or more employees made redundant at a single workplace by your employer or its administrators, without consultation, or without sufficient consultation.
If representatives were elected for the purposes of redundancy consultation or there was an existing representative forum or recognised union, then those representatives might have to bring the claim on your behalf. You must therefore identify whether any representatives were in place and make sure they pursue this claim. However, the rules about whether or not the representatives were ‘appropriate’ and/or properly elected are complex and in most cases, it is essential that individual claims are pursued as well as representative claims. If no representative was elected, or he/she wasn’t properly elected you must lodge a claim yourself. If you don’t pursue a claim yourself, you won’t be able to benefit from a protective award.
Unlike an unfair dismissal claim, the statutory right to pursue this claim is not conditional on your length of service. Provided you were made redundant, you are eligible to make a claim.
When must the claim be brought?
A claim must 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 primary period.
If I am successful, what am I likely to recover?
The maximum award that an Employment Tribunal can make is 90 days’ gross pay. In cases where no consultation took place, 90 days’ pay is often awarded. Where there has been some consultation, or there were special or mitigating circumstances as to why consultation couldn’t take place, awards commonly range between 28 and 56 days’ pay.
However, where the company is insolvent, it is likely that only a proportion of the compensation awarded by the Tribunal can actually be recovered in practice via the government’s Insolvency Service (see below).
What if my employer is insolvent?
If you were made redundant because your employer became insolvent, the Insolvency Service can pay Protective Award compensation out of the National Insurance Fund. Protective award compensation is classed as ‘arrears of pay’ for Insolvency Service purposes. The amount is limited to a maximum of 8 weeks’ gross pay (capped at £508 per week), less amounts already paid for wages or commission payments owed to you. However, you must first secure an Employment Tribunal judgement and send this to the Insolvency Service to claim payment.
How can Morrish Solicitors LLP help me?
We have vast experience in bringing multiple Protective Award claims. We represented 260 ex-CityLink employees, who were each awarded 90 days’ pay (BBC News, ITV News) and we have also had success in other large protective award claims such as Phones4u (Yorkshirelegalnews), Turners Fine Foods, Paperlinx, Austin Reed and Maplin. We’re also currently pursuing claims against Poundworld and others.
We can prepare the claims in detail, collate documents and compile bundles. Witness evidence and legal submissions will need to be completed and there is a great deal of administration involved in the process, which is often complex. These claims are often defended by the company and/or the administrators/liquidators and a Tribunal hearing might be needed. If the claims succeed, we liaise with the Insolvency Service to secure payments from the National Insurance Fund. We can fully advise you at each stage of the process.
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 for a Protective Award. Trade union membership is by far the best way of funding these types of claim, as legal assistance is usually a benefit of membership.
If trade unions operate within the company, we also need to check whether you are part of a bargaining unit for which a trade union is recognised.
If you would like to submit a potential claim, please complete our online Protective Award questionnaire.
If you have any questions, please email us at firstname.lastname@example.org
You should note that there is a general time limit of 3 months (less one day) from the date of the act complained of to bring most types of claims in the Employment Tribunals (ETs), subject to any extension by way of use of the ACAS Early Conciliation process. In a protective award claim ET proceedings must be commenced within 3 months (less one day) from the date of dismissal.
We are unable to give you more detailed advice about time limits at this stage but you should have regard to the time limit. At this stage, we cannot take any responsibility for lodging any claim within that time limit – you have responsibility for doing so.