Collective consultation and fire and rehire: Government announces doubling of protective award but decides against interim relief remedy

The Government has confirmed that the maximum protective award an employment tribunal can make in collective redundancy and fire and rehire cases is to be doubled to 180 days’ full pay. However, it has decided not to proceed with a proposal to allow employment tribunals to order interim relief in such cases. The Government’s confirmation comes in its response to its consultation on strengthening the remedies available in collective redundancy and fire and rehire claims.

Protective awards

An employment tribunal can order an employer to pay a protective award where the employer has failed to comply with it collective consultation obligations. Typically these obligations apply where an employer is proposing to make 20 or more redundancies within a 90-day period or to dismiss and re-engage 20 or more employees within a 90-day period in order to effect changes to their employment terms (fire and rehire). In October last year, following the publication of the Employment Rights Bill, the Government announced that it was considering doubling the maximum protective award (from 90 days’ to 180 days’ full pay), or possibly removing the cap entirely.

The Government has now confirmed in its consultation response that it has decided that the maximum protective award should be doubled to 180 days’ full pay and this will be implemented through a change to the Employment Rights Bill.

The Employment Rights Bill already contained provisions removing the current requirement that for collective consultation obligations to be triggered, the proposed dismissals must be at the same workplace / site / office. Instead, the number of dismissals will be calculated across the whole of the employer’s business. As a result, collective consultations obligations will be triggered more often than is currently the case.

When will the changes take effect?

Nothing further has been said about when we can expect the changes to take effect but based on what the Government said when the Employment Rights Bill was first published, they are unlikely to be in force before 2026.

In response to concerns that some employers may need greater support to help them comply with collective consultation obligations and to understand the legal complexities, the Government has said it will issue further best practice guidance for employers in due course.

Interim relief

Interim relief is a remedy which, if granted, requires an employer to re-instate or re-engage a dismissed employee pending the final hearing of their claim. Interim relief is currently only available in a small number of unfair dismissal claims, such as whistleblowing claims. As part of its consultation, the Government was considering whether interim relief should be made available as a potential remedy in protective award claims and in automatic unfair dismissal claims in ‘fire and rehire’ cases. However, it has decided that it will not be proceeding with this proposal. It notes that employment tribunals have recently been given the power to apply a 25% uplift to a protective award if an employer has unreasonably failed to comply with the Code of Practice on Dismissal and Re-engagement. The Government considers that this, along with the doubling of the protective award, should be effective to strengthen compliance with collective consultation obligations, but it intends to monitor this and consider if further measures are necessary should this prove not to be a sufficient deterrent.

The Employment Rights Bill already contains provisions which will severely restrict an employer’s ability to use fire and rehire to effect changes to employment contracts.

Read more about those provisions and other provisions in the Employment Rights Bill.