This case concerns the starting point for making a protective award under s. 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 and compensation under Reg 15 of TUPE.
The Council engaged in both redundancy and TUPE consultation exercises. It provided some information as required under s. 188 of the 1992 Act and Reg 13 but did not provide agency worker information as required under Reg 13(2A). The ET recognised that the starting point of the maximum award should be reserved for the cases where there had been no consultation, however, its reasoning was then:
We also accept that Susie Radin indicates that we start with a maximum only where there is no consultation and that cannot be said to be the position in this case. Having said that we are not quite sure where we should start if we do not start with the maximum and work down. It was not put to us by either of the Respondents’ representatives that there was a better place to start and given that in our view this is a relatively serious failure we do indeed start with the maximum.”
In the absence of guidance the ET therefore started at the maximum award and worked down. It held that the information was relatively easy to produce, that the union had asked for the information, and that it was required for consultation. It regarded the failure as relatively serious and made awards of 40 and 50 days pay in respect of the failure to comply with Reg 13(2A).
The EAT Judgment
The EAT held that the tribunal was in error. In Susie Radin it was held that the maximum award should be reserved for cases where there had been no consultation. Further, in Todd v Strain § 29 it was held that where there had been some compliance ETs should not mechanically start at the maximum award and work down. The EAT remitted the case back to the ET but in doing so did not provide any further guidance.
A breach of Reg 13 will encompass cases where there has been a breach of the most technical nature to cases of no compliance at all. The difficulty this ET had was where to start on the scale where there had been some compliance. The EAT did not, regrettably offer it much assistance when remitting back.