Trade Union and Labour Relations (Consolidation) Act 1992

189 Complaint F1 . . . and protective award. E+W+S

F2 [(1) Where an employer has failed to comply with a requirement of section 188 or section 188A, a complaint may be presented to an employment tribunal on that ground–

(a) in the case of a failure relating to the election of employee representatives, by any of the affected employees or by any of the employees who have been dismissed as redundant;

(b) in the case of any other failure relating to employee representatives, by any of the employee representatives to whom the failure related,

(c) in the case of failure relating to representatives of a trade union, by the trade union, and

(d) in any other case, by any of the affected employees or by any of the employees who have been dismissed as redundant.]

[F3 (1A) If on a complaint under subsection (1) a question arises as to whether or not any employee representative was an appropriate representative for the purposes of section 188, it shall be for the employer to show that the employee representative had the authority to represent the affected employees.

F3 (1B) On a complaint under subsection (1)(a) it shall be for the employer to show that the requirements in section 188A have been satisfied.]

(2) If the tribunal finds the complaint well-founded it shall make a declaration to that effect and may also make a protective award.

(3) A protective award is an award in respect of one or more descriptions of employees—

(a) who have been dismissed as redundant, or whom it is proposed to dismiss as redundant, and

(b) in respect of whose dismissal or proposed dismissal the employer has failed to comply with a requirement of section 188,

ordering the employer to pay remuneration for the protected period.

(4) The protected period—

(a) begins with the date on which the first of the dismissals to which the complaint relates takes effect, or the date of the award, whichever is the earlier, and

(b) is of such length as the tribunal determines to be just and equitable in all the circumstances having regard to the seriousness of the employer’s default in complying with any requirement of section 188;

but shall not exceed 90 days F4 . . . .

(5) An industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal—

(a) before the [F5 date on which the last of the dismissals to which the complaint relates] takes effect, or

(b) [F6 during] the period of three months beginning with [F7 that date], or

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented [F8 during the] period of three months, within such further period as it considers reasonable.

[F9 (5A) Where the complaint concerns a failure to comply with a requirement of section 188 [F10 or 188A] , section 292A (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsection (5)(b).]

(6) If on a complaint under this section a question arises—

(a) whether there were special circumstances which rendered it not reasonably practicable for the employer to comply with any requirement of section 188, or

(b) whether he took all such steps towards compliance with that requirement as were reasonably practicable in those circumstances,

it is for the employer to show that there were and that he did.

Textual Amendments

F1 Words in sidenote to s. 189 omitted (26.10.1995) by virtue of S.I. 1995/2587, reg. 4(5)

F2 S. 189(1) substituted (28.7.1999 subject to reg. 2(2) of the commencing S.I.) by S.I. 1999/1925, regs. 2(2), 5(1)(2)

F3 S. 189(1A)(1B) inserted (28.7.1999 subject to reg. 2(2) of the commencing S.I.) by S.I. 1999/1925, regs. 2(2), 5(1)(3)

F4 Words in s. 189(4) omitted (28.7.1999 subject to reg. 2(2) of commencing S.I.) by virute of S.I. 1999/1925, regs. 2(2), 5(1)(4)

F5 Words in s. 189(5)(a) substituted (26.10.1995) by S.I. 1995/2587, reg. 4(4)(a)

F6 Word in s. 189(5)(b) substituted (26.10.1995) by S.I. 1995/2587, reg. 4(4)(b)(i)

F7 Words in s. 189(5)(b) substituted (26.10.1995) by S.I. 1995/2587, reg. 4(4)(b)(ii)

F8 Words in s. 189(5)(c) substituted (26.10.1995) by S.I. 1995/2587, reg. 4(4)(c)

F9 S. 189(5A) inserted (6.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 2 para. 11; S.I. 2014/253, art. 3(g)

F10 Words in s. 189(5A) inserted (6.4.2014) by The Employment Tribunals Act 1996 (Application of Conciliation Provisions) Order 2014 (S.I. 2014/431), art. 1, Sch. para. 1