PROTECTIVE AWARD

Cranswick Country Foods plc v Beall and others

EAT: Judge Serota QC, Ms J L P Drake and Dr B Fitzgerald: 20 December 2006

The claimants were among 90 employees made redundant between 12 April and 19 November 2004. Their trade union made a complaint to an employment tribunal that the employers were in breach of their duty to consult representatives of the employees about the proposed dismissals in accordance with section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. The claim was upheld, and the tribunal made a protective award under section 189 of the Act ordering the employers to pay remuneration to dismissed employees for a protected period of 70 days, which, pursuant to section 189(4)(a), began on 12 April 2004. In subsequent proceedings by the claimants to ascertain the amount of their remuneration, a tribunal rejected the employers' contention that the claimants were not entitled to any remuneration under the award by virtue of section 190(4), made on the ground that, as the claimants had not been dismissed or given notice of dismissal until after the expiry of the 70-day protected period, they had during that period been employed by the employers and had been paid.

The employers appealed.

The Employment Appeal Tribunal held:
Construed in a manner consistent with the United Kingdom's obligations relating to the safeguarding of employees' rights under Directive 77/187/EEC, section 190(4) of the Trade Union and Labour Relations (Consolidation) Act 1992 dealt with the position of persons who were not dismissed and continued to be employed during the protected period but who for some reason were not being paid, because, for example, they were on long-term sick leave or unpaid long-term leave of absence and, possibly, where the employer was in financial difficulties, but it did not apply to employees who had been employed during the protected period but who had been dismissed. Accordingly, the claimants were entitled to 70 days' remuneration under the protective award.

The appeal was dismissed.

Appearances: Simon Devonshire (Rollits, Hull) for the employers; Oliver Segal (Thompsons, Newcastle upon Tyne) for the claimants.