90-day protective award for failure to consult before mass redundancy
A tribunal awarded 90 days' pay to 15 employees dismissed without any consultation when Clements Limited went into administration.
1 min read · Last updated 19 May 2026
Case details
- #protective-award
- #redundancy
- #failure-to-consult
- #no-mitigating-circumstances
- #90-day-award
Key facts
- The first respondent dismissed employees in two tranches on 21 September 2022 and 4 November 2022 due to redundancy.
- The first respondent failed to consult with employee representatives or the claimants before dismissal.
- The first respondent did not file a response or provide any mitigating circumstances.
- The claimants withdrew all other claims except for the protective award claim.
- The tribunal found no mitigating circumstances to reduce the protective award.
Timeline
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First dismissal tranche
The first respondent summarily dismissed most claimants and other employees due to redundancy.
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Second dismissal tranche
The remaining claimants were dismissed due to redundancy.
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Early conciliation started
Early conciliation between the claimants and respondents began.
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Early conciliation ended
Early conciliation concluded.
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Claim presented
The claimants presented their claim to the tribunal.
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Administrators' consent
The administrators of the first respondent consented in writing for the claims to continue.
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Withdrawal of other claims
The claimants withdrew all claims except for the protective award.
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Original judgment
Employment Judge Adkinson made a protective award of 90 days' remuneration, with specific start dates for each tranche.
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Application for reconsideration
The claimants applied for reconsideration, arguing the original decision was factually incorrect regarding dismissal dates.
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Reconsideration judgment
The tribunal allowed the reconsideration and amended the award to cover all claimants dismissed between 21 September and 4 November 2022, with the 90-day period starting on each claimant's individual dismissal date.
The legal issue
Whether the employer complied with the legal duty to consult employee representatives before making 20 or more employees redundant, and if not, what protective award should be made.
The outcome
The tribunal upheld the protective award claim and granted 90 days' remuneration for each claimant. The employer had dismissed employees in two tranches without any consultation or election of employee representatives, and did not provide any mitigating circumstances. The award starts from each claimant's individual dismissal date.
Lessons & takeaways
- Employers must consult with employee representatives before making 20 or more employees redundant, even if the company is in administration.
- Failure to consult can result in a protective award of up to 90 days' pay per employee, with no reduction if no mitigating circumstances are shown.
- Employees who are not trade union representatives can claim a protective award only for themselves, not on behalf of others.
- Withdrawing other claims does not affect a protective award claim, which is a separate right under TULCRA.
What this case shows
This case demonstrates the serious consequences for employers who fail to consult before mass redundancies. Clements Limited dismissed 15 employees in two tranches without any consultation, no election of employee representatives, and no attempt to engage with staff. The company was in administration, but that did not excuse the failure to consult.
What the employer could have done differently
The employer could have elected employee representatives or consulted directly with the employees. Even in administration, there is a duty to consult. The employer did not file a response or offer any mitigating circumstances, which led to the maximum 90-day protective award.
Why this matters
This case reinforces that the duty to consult under TULCRA sections 188 and 189 is strict. Employees who are dismissed without consultation can claim a protective award for themselves. The award is calculated as a 'protective' period of up to 90 days, representing the pay they would have received during consultation. Here, the tribunal awarded the full 90 days because there were no mitigating factors.
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