This case usefully illustrates the approach to be taken in the assessment of awards for breaches of Regs 13 and 14 (information and consultation and election of representatives). As is well-known, the award is punitive and the starting point is 13 weeks’ pay for cases where there has been no information provided and no consultation. The employer must mitigate down from this.
The default concerned the election of employee representatives. A ballot was held at very short notice. One employee, B, was absent and another, L, concerned about the short timescale decided not to vote in the election. The outcome of the ballot was that there was one clear winner and a tie for the second representative position. The Managing Director arbitrarily selected one of these two employees to be the representative on the basis that the other employee did not work on Thursdays when the consultation meetings were scheduled.
There were two criticisms of the process which were upheld. The first was the that the timescale was too short and did not give all employees the opportunity to vote. The second was the failure to deal properly with the tie break. The ET awarded L, (who was present and elected not to vote), 2 weeks’ pay and B, (who was absent and knew nothing about the election), 7 weeks’ pay. The ET observed that the employer’s default was not as severe as that in Todd v Strain [2011] yet in the case of B made an award of the same amount as was made in that case.
The EAT did not interfere with the award to L, but reduced the award to B to 3 weeks’ pay. In doing so Langstaff P held: (i) the test on appeal for reducing an award is whether the award is manifestly excessive rather than perversity (para 28) and (ii) the purpose of the award is to ‘ensure that employers generally are mindful of their obligations to consult and inform, particularly in circumstances in which there will inevitably be pressures often of time upon the employer to do the opposite’ (para 12).