London Borough of Barnet v UNISON & Anor

In fixing a protective award or compensation for failures of collective redundancy consultation or TUPE information duties, the tribunal must focus on the seriousness of the employer’s default and what is just and equitable. The maximum award is an appropriate starting point only where there has been no consultation at all. It must not be used as a general starting point merely because the failure is relatively serious where some information or consultation has occurred.

Under regulation 15(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006, a transferee is jointly and severally liable with the transferor for the relevant compensation. Apportionment between them is for the ordinary courts, not the Employment Tribunal.

Barnet proposed redundancies and transferred housing and parking staff. UNISON complained that it had not supplied the required information about agency workers under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 and regulation 13 of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

The Employment Tribunal at Watford upheld the complaints. It made a 60-day protective award for redundancies, compensation equivalent to 40 days’ pay for the housing transfer, and 50 days’ pay for the parking transfer. It had begun its assessment from the statutory maximum despite finding that some consultation and information had been provided.

Barnet appealed the approach to the awards and the Tribunal’s failure to declare NSL, the parking transferee, jointly and severally liable. NSL cross-appealed, seeking apportionment of liability.

1. Appeal allowed. The Employment Tribunal erred in law in its approach to the protective award and TUPE compensation. The governing inquiry was what was just and equitable, having regard to the seriousness of the employer’s default under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 and the corresponding TUPE provisions.

2. The guidance in Susie Radin Ltd v GMB & Others, [2004] ICR 893, permits a tribunal to start with the maximum and reduce it for mitigation only where the employer has engaged in no consultation. Todd v Strain & Others, [2011] IRLR 11, confirms that this approach must not be applied mechanically where some information or consultation has occurred.

3. Although the Tribunal correctly recognised that the maximum starting point was unavailable on its findings, it nevertheless adopted that starting point because it regarded the breach as relatively serious. This was not a mere infelicity of expression. It disclosed a material self-direction as to the method of assessment. The awards therefore could not stand.

4. The award issue was remitted to the same Tribunal. It had heard the evidence over two days and was best placed to reassess the protected period and compensation under the correct direction.

5. The Tribunal also erred by failing to declare that NSL was jointly and severally liable with Barnet under regulation 15(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006. The Appeal Tribunal made that declaration. NSL’s cross-appeal seeking an apportionment was dismissed: any contribution issue is for the ordinary courts, not the Employment Tribunal.

• Employment Appeal Tribunal: Allowed Barnet’s appeal. The award assessment was remitted to the same Employment Tribunal, and a declaration of joint and several liability was made.
• Employment Tribunal at Watford: Reserved judgment sent on 4 February 2013. It upheld the complaints, made a 60-day protective award, and awarded TUPE compensation equivalent to 40 and 50 days’ pay.