UK: Collective redundancy - employees cannot bring representative claims for protective awards

Employees who bring a claim for failure to inform and consult on collective redundancies (eg, where there are no trade union or employee representatives) can only obtain a protective award in their own favour individually, and not in favour of other affected employees.

Collective redundancy law requires employers to inform and consult trade union or elected employee representatives. Those representatives can bring claims for a protective award for breach in respect of all the employees they represent. Individual affected employees can bring claims for failures concerning the election of employee representatives and any other failures where there are no representatives. In these circumstances, some tribunals have made protective awards in favour of all the affected employees, not just the individual claimant.

The EAT has now ruled that this is wrong in a case handled by Herbert Smith's employment team and advocacy unit. Only trade union and elected employee representatives can bring representative claims and win protective awards in favour of their constituency. Individual claimants can only seek awards in their own personal favour.

By analogy, the same should apply to awards for failure to inform and consult under TUPE.

While this could lead to a multiplicity of claims, it does at least remove the option for individual claimants to raise the prospect of a representative award in order to negotiate a higher settlement. Employers should now have more certainty and confidence in handling and settling individual claims. (Independent Insurance v Aspinall, EAT)

Another EAT ruling has established that uncontested elections for employee representatives are valid. Where there are the same number of vacancies as candidates, an employer can treat all the candidates as elected without holding a ballot. (Phillips v Xtera Communications, EAT)