As readers of the ERA 2025 Series (formerly the ERB Series) will know, the Employment Rights Act 2025 (the Act) came into force on 18 December 2025. One of the first significant changes to be introduced under the Act in April 2026 will be the substantial increase to protective awards made by employment tribunals where an employer has failed to carry out proper collective redundancy consultations under section 188 of Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). The maximum protective award will double from 90 to 180 days' pay for each redundant employee.
A protective award is a punitive financial award imposed by a Tribunal against an employer which fails to carry out proper consultations with appropriate representatives (trade union or elected employees) in relation to a collective redundancy exercise. Unusually, the claim is made by the representatives who should have been consulted but the awards are paid to the employees concerned without them having to bring a claim themselves.
Although an employer proposing to make 20 to 99 redundancies is only required to begin consulting representatives at least 30 days before the first dismissal occurs, it currently risks having to pay any dismissed employee up to 90 days’ (actual) pay if it fails to do so.
The punishment has always been intended to be significant to encourage compliance with TULRCA consultation obligations.
However, recent high profile and controversial cases where employers have appeared to make a calculated commercial choice to 'opt out' of any TULRCA consultation process and, instead, simply 'pay up' the necessary protective award payments, have prompted the government to increase the maximum level of protective awards from 90 to 180 days. This is openly intended to deter even the biggest employers from ignoring, or buying off, their TULCRA consultation duties.
It will remain the case that a Tribunal must award an amount that is just and equitable having regard to the ‘seriousness of the employer’s default’ which means that an employer that completely disregards the duty to consult under TULCRA is likely to be hit with the maximum 180-day award per redundant employee. If the breach is unintentional and / or is more technical than substantial, a lower award is likely to be considered appropriate.
If you'd like support on any aspects of the increase to protective awards, please contact one of our expert employment law solicitors.
