Protective Award and Redundancy Claims

Getting made redundant from your job is a highly stressful experience, bringing with it feelings of financial insecurity and worries about the future.

Danielle Wright

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If qualifying conditions are met, you may be entitled to a statutory redundancy payment along with notice and outstanding accrued holiday pay.

However, the fact that an employer decides to make redundancies is often a sign that the business is experiencing financial difficulties and unbeknown to its employees, those difficulties may be such that the company becomes insolvent, meaning it cannot pay your redundancy payment and any other contractual payments to which you are entitled. It may even be that you are made redundant without receiving any notice of redundancy, and you only find out after the company has gone into liquidation.

Unfortunately, you could find yourself in the position where:

  • You are made redundant without going through a consultation process with your employer (or the process was flawed) and/or,
  • Your employer cannot pay your redundancy payment and other outstanding payments, such as holiday pay, unpaid wages, or the salary you would have received during your notice period.

At this stage, it's important to say that if you find yourself in either or both of the above situations it doesn't mean you will go without compensation.

There are solutions. Although these may not see you compensated to the extent you would have been, had your employer not become insolvent, they will ensure that you are not left entirely out of pocket.

The law relating to Protective Award Claims is complicated, and navigating through the procedure to claim for unpaid redundancy payments from the government's Insolvency Service can be confusing and daunting to deal with on your own.

At Spencers Solicitors, we have experienced employment law solicitors with many years of experience taking Protective Award Claims to employment tribunals and obtaining successful outcomes for our clients. Call us now on 08000 93 00 94 or click here to email us.

We also help clients who have been made redundant but whose employer has become insolvent by claiming back their redundancy payments, unpaid protective awards, and other contractual entitlements from the Insolvency Service.

What is a Protective Award?

A Protective Award is the compensation you may be entitled to if your employer fails to consult with you and your colleagues before you are made redundant.

Where an employer plans to make 20 or more employees redundant (from one location and within a 90-day period), it must adhere to certain consultation requirements.

By law, if employees are members of a recognised Trade Union, the employers must consult via the Union. They must consult with elected employee representatives if there is no Trade Union and certain requirements must be met to ensure the consultation process implemented is correct.

The consultation must start:

  • At least 30 days prior to any dismissal when there are between 20 to 99 proposed redundancies.
  • At least 45 days prior to any dismissal when there are 100 or more proposed redundancies.

There are also rules with regards to what information needs to be provided to employee representatives, notification requirements to the Redundancy Payment Service (with strict time limits) and termination notices that need to be provided to those employees being made redundant.

Under what circumstances would I be entitled to make a Protective Award claim?

There are two conditions, both of which you must meet to make a Protective Award Claim:

  • You are one of at least 20 employees made redundant (at one location and within a 90-day period
  • Your employer failed to carry the correct collective consultation process or failed to consult at all.

How much could I get for Protective Award compensation?

You could receive up to 90 days gross pay if you make and succeed in a Protective Award compensation claim.

Will I still receive Protective Award Compensation if my employer is insolvent?

If the company you worked for is insolvent, you can apply to the Insolvency Service, which will pay some of the compensation award, but not all (see below).

An Employment Tribunal must have decided the Protective Award claim, and you must be one of the redundant employees named in the Tribunal judgment. In other words, you need a Tribunal judgment in your favour to claim from the Insolvency Service successfully.

How long do I have to claim Protective Award Compensation?

A claim must be made within three months, less one day, from the date the last person was dismissed.

You must first go through the ACAS early conciliation programme and receive an Early Conciliation certificate at the end of the ACAS process. After receiving this certificate, you may start a Tribunal claim (assuming conciliation does not work).

If you go through the ACAS process, your time limit for starting a Tribunal claim will be extended by the conciliation period. It is advisable to seek advice to find the precise position in your case. Call us on 08000 93 00 94, and one of our experienced employment solicitors will be able to help you.

How do I claim a Protective Award?

If you are a member of a Trade Union, they will claim on your behalf. However, if you are not a Union member, you have the choice to:

  1. Claim compensation yourself or,
  2. Ask an experienced Protective Award solicitor to take up the claim on your behalf.

There are relatively few specialist Protective Award Solicitors. If you decide to seek professional legal advice and assistance to bring a protective Award claim, it's essential to choose an Employment Law solicitor experienced in this complex area of law.

Spencers Solicitors have considerable experience helping clients take protective awards claims through the ACAS process and, after that, successfully to Tribunal.

Contact us on 08000 93 00 94 to speak confidentially and without obligation to one of our expert Protective Award solicitors about making a claim. You can also email us at mail@spencerssolicitors.com, and we'll get back to you immediately.

How will I pay you for pursuing a Protective Award claim for me?

We can usually handle Protective Award claims on a No Win No Fee basis, meaning you won't pay us a penny unless and until we successfully recover compensation on your behalf.

If my employer becomes insolvent, and I have not received redundancy pay, can I claim from the Insolvency Service?

You are usually entitled to redundancy pay (this is not the same as the Protective Award) if you have been made redundant as long as:

  • you were an employee (not self-employed), and
  • the same employer had continuously employed you for two years or more.

If your company is insolvent, you'll get paid a statutory redundancy payment that's calculated based on:

  • age
  • weekly pay
  • number of years of continuous employment with your former employer

Redundancy payments are capped at £571 per week from 6th April 2022, and you can receive payments for a maximum of twenty years' employment with the company.

What other payments can I get from the Insolvency service if I'm made redundant, and my employer is insolvent?

  • Wages and other money owed, such as unpaid bonuses, commission or overtime; you can only claim for these items from the Insolvency Service if the terms of your employment contract expressly entitle you to them. If you are entitled to the payments, you will receive a maximum of eight weeks of payment capped at £571 per week.
  • Holiday pay for days owed that you didn't take off and for days you took but didn't receive payment for; Up to six weeks’ pay at a maximum of £571 per week.
  • Statutory notice pay; when made redundant, you are entitled to a paid notice period of up to twelve weeks (dependant on length of service) at a maximum of £571 per week.

Can Spencers Solicitors help me to claim redundancy and other payments I am owed from the insolvency Service?

Yes, we can. We frequently get asked to help people claim unpaid redundancy pay and other redundancy-related payments to which they may be entitled from the Insolvency Service.

Clients often come to us because they find the process of claiming online daunting, especially when they have multiple claims to make for different types of payments.

Spencers Solicitors can help you by advising which payments you can claim, calculating how much you are entitled to, and completing the necessary application(s) for you.

Call us now on 08000 93 00 94, for further advice.

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How long must I have worked for the company to qualify for making a Protective Award claim?

There is no minimum amount of time you must have worked for the company to qualify for making a Protective Award claim. If you are also looking to pursue an ordinary unfair dismissal claim, you will need two year's continuous service.

How much will I get if my employer is insolvent, and I claim the Protective Award compensation from the Insolvency service?

The insolvency service will pay the Protective Award compensation, but it will be capped at eight weeks pay, and as of 6th April, it is capped at £571 per week. From this, national insurance will be deducted, as will any arrears of pay or state benefits you have already received.

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