189 Complaint by trade union and protective award.E+W+S
(1)Where an employer has dismissed as redundant, or is proposing to dismiss as redundant, one or more employees of a description in respect of which an independent trade union is recognised by him, and has not complied with the requirements of section 188, the union may present a complaint to an industrial tribunal on that ground.
(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 in a case falling within section 188(2)(a), 30 days in a case falling within section 188(2)(b), or 28 days in any other case.
(5)An industrial tribunal shall not consider a complaint under this section unless it is presented to the tribunal—
(a)before the proposed dismissal takes effect, or
(b)before the end of the period of three months beginning with the date on which the dismissal takes effect, or
(c)where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months, within such further period as it considers reasonable.
(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.