The main risk is that employers will be ordered to pay a ‘protective award’ if they are found not to have complied with their collective consultation obligations by an Employment Tribunal. Tribunals can make a ‘protective award’ of 90 days’ pay in respect of each employee, and this is not subject to the cap on a ‘week’s pay’ as other areas of employment law.
Furthermore, a failure to properly collectively consult may also give rise to a claim that one or more of the redundancy dismissals were not fair, and redundant employees may bring unfair dismissal claims on that basis.
Employers are also required to file a HR1 form at the outset of the process with the Government, providing certain details of the proposed redundancies. Failure to do so can actually constitute a criminal offence!
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