Independent Insurance Co Ltd v Aspinall & Anor

Under sections 188–189 of the Trade Union and Labour Relations (Consolidation) Act 1992, a protective award is confined to employees in respect of whom the relevant complaint is brought and proved. A trade union or elected representative may obtain an award for employees within its representative constituency. An individual employee may obtain an award for that individual, but cannot obtain an award benefiting other employees merely because they are similarly affected by the redundancies. The Tribunal’s discretion to make a protective award does not permit liability to be extended beyond the proper claimant constituency.

Employees of an insurance company were made redundant after the company entered provisional liquidation. The Employment Tribunal found breaches of the collective consultation and employee-representation requirements in sections 188 and 188A of TULRCA. On complaints by three individual employees, it made a 90-day protective award in respect of all employees dismissed from the employer’s Cheadle office.

The employer appealed. The central issue was whether an individual claimant could obtain a protective award for other employees who had not brought claims, including employees whose claims had been settled, dismissed or never presented.

1. Appeal allowed. The Employment Tribunal had jurisdiction to make a protective award in favour of the individual claimants, but not for the wider group of employees who were not parties to their complaints.
2. The statutory architecture of sections 188, 188A and 189 gives representative rights to recognised trade unions and elected employee representatives. Those representatives may enforce the rights of their respective constituencies. Where there is no such representative, the consultation obligation concerning section 188 matters is fulfilled through consultation with each individual employee.
3. Section 189(3) must be read in context. The reference to an award in respect of one or more descriptions of employees does not authorise an individual claimant to bring, in substance, a representative action for all similarly affected employees. A protective award can be made only in favour of employees in respect of whose dismissal or proposed dismissal a relevant breach has been established through the complaint before the Tribunal.
4. This construction was supported by Transport & General Workers Union v Brauer Coley Ltd and by the contextual approach to statutory interpretation stated by Lord Blackburn in River Wear Commissioners v Adamson. It avoided the anomalous result that an individual claimant could confer a wider benefit than a trade union or elected representative, without notice, authority or corresponding duties.
5. The word “may” in section 189(2) confers a discretion. The Tribunal’s discretion could not properly be exercised so as to extend recovery beyond the individual applicants.

• Employment Appeal Tribunal: Allowed the employer’s appeal from the Employment Tribunal’s decision and confined the protective award to the individual claimants.