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Protective Award Reduced due to Union condoning Failure

29 October 2010 #Employment

The EAT in Lancaster University -v- The University and College Union (UCU), agreed with the Tribunal`s decision to reduce a protective award from the maximum 90 days` to 60 days` pay.  The union had ‘effectively condoned` a failure to undertake a collective redundancy consultation process. 

There were several employees employed on fixed-term contracts about to expire. The notification and consultation procedure which applied to these employees required that they be notified in writing to warn them that their employment would be at risk if funding for their contracts was not renewed.  Further consultation meetings would then be held to confirm possible options such as redeployment, extension of contract or termination of employment.   The UCU were also provided with lists of employees whose contracts were due to expire in the following four months.  This procedure, in agreement with the UCU, had been in place for over 10 years.

However, when a new regional support officer took up post in the UCU, a complaint was made about the procedure for collective consultation.  It was argued that that the employer did not meet its obligation to inform and consult under S.188 of TULRCA 1992, when 20 or more redundancies were proposed within 90 days.  The support officer raised this issue several times over a period of nine months.  An application for a protective award was subsequently made as no procedural changes were forthcoming.  

Although the Tribunal agreed with the support officer that the employer`s established procedure did not comply with S. 188 of TULRCA there was a significant mitigating factor - the Union ‘effectively condoned` the employer`s practices for over ten years. 

Although this mitigation was taken into account and reduced potential compensation by a third, the employer was nevertheless sanctioned as the burden of collective consultation and notification still rested with them.

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