In Shields Automotive Ltd v Langdon and Another  UKEAT 0059, the Employment Appeal Tribunal (EAT) has held that an award of seven weeks' pay for a minor breach of an employer's obligation to inform and consult under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) was excessive; the Tribunal had incorrectly calculated the award on the basis that it was compensatory, rather than punitive.
Shields Automotive Ltd (Shields) informed its employees of the transfer of its business at 2 pm and gave them until 5 pm on the same day to elect two representatives. Mr Brolly, one of the employees, was not able to vote because it was his day off. The election produced a tie between two candidates and Shields selected a representative from the tied candidates, without referring the matter back to the employees.
The EAT upheld the ET's decision that Shields had breached its obligations under TUPE because (a) it had not taken reasonably practicable steps to ensure the fairness of the election, as Mr Brolly had not had an opportunity to exercise his right to vote, and (b) it had compromised the fairness of the election by choosing one of the representatives. On the issue of compensation, however, the EAT reduced Mr Brolly's award from seven to three weeks' pay as it found it had been excessive in light of Shields' minor breach. The ET had erred in seeking to compensate Mr Brolly, rather than to punish Shields for its breach.
The case highlights the importance of exercising due care when complying with the obligations to inform and consult under TUPE as even minor breaches will be penalised. However, employers may take some comfort in knowing that any award should be proportionate to the breach, i.e. the more minor the breach, the lower the award.