The EAT has dealt with another case on the level of protective
awards, this time under the TUPE Regulations. In Shields Automotive
v Langdon and Brolly, the EAT held that an award of seven
weeks' pay was too high for a technical breach of the
requirement to ensure a fair election for employee representatives.
Shields Automotive operated a car dealership which transferred to
another company under TUPE. Employees were informed about the
transfer and invited to elect employee representatives, but were
given only three hours to vote. Mr Langdon chose not to vote
because he objected to the short timescale. Mr Brolly was
unable to vote as it was his day off. Whilst the vote
produced a clear winner for the first representative, there was a
tie for second place and management simply selected a
representative rather than telling employees about the tie.
Mr Langdon and Mr Brolly brought successful Tribunal claims for
protective awards because of the employer's failure to ensure
that there was a fair election. Mr Langdon was awarded two
weeks' pay. Mr Brolly was awarded seven weeks' pay
because he was affected by the tie-break breach whereas Mr Langdon
was not, since he had decided not to vote.
On appeal the EAT agreed that there had been a technical breach of
TUPE because of the defects in the election process but held that
the Tribunal had focused on compensating employees rather than
punishing the employer. Crucially, the quality and content of
consultation were not criticised. Therefore the award
had to be far less than if there had been no information and
consultation at all. The EAT held that the two week award
for Mr Langdon was appropriate, but reduced Mr Brolly's award
to three weeks' pay.
This is another case where the EAT considered that the Tribunal had
failed to assess properly the degree of seriousness of the
employer's breach of the information and consultation
obligations. In contrast to the case of AEI Cables v GMB
above, the employer in this case had to a large extent complied
with its obligations, so the protective awards were relatively
small.
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