A recent EAT ruling has clarified that a tribunal should start with the maximum potential award of 90 days' pay per affected employee for breach of information and consultation obligations on a TUPE transfer or collective redundancies only if no information or consultation has been carried out. Where some information or consultation has been done, the tribunal should decide a lower appropriate starting point before taking into account mitigating factors relevant to the breach (such as the importance of the relevant breach in the context, how easy it would have been to comply, and whether the employer was aware of its breach).
Although this represents a change of emphasis, in practice the outcome may be little different given the tribunal's wide discretion to make an award which is just and equitable in the circumstances. (London Borough of Barnet v Unison, EAT)
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