AEI Cables Ltd v (1) GMB (2) Unite (3) Individual Claimants - Employer's insolvency is mitigating factor for assessing length of protective award [2013] EAT

Employer's insolvency is mitigating factor to be TIC when assessing the length of protective award for failure to properly consult under s.188 TULR(C)A

This is an appeal from an ET decision that AEI, manufacturers of copper wiring and cabling, had failed to comply with the requirement in section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 to consult on the requirement to dismiss 100 or more employees. The Employment Tribunal concluded that it was appropriate in the circumstances to make a protected award of 90 days wages having regard to the seriousness of AEI's default in relation to its failure under section 188. The Claimants were the two trade unions who represented their members and a number of individual employees. AEI's business was hit by a steep increase in the price of copper between September 2010 and February 2011 when the price of copper rose from £5,000 a metric ton to £6,250 a metric ton. At the same time as AEI were faced with the significant increase in the cost of copper there was downward pressure on prices as a result of cheap imports and also inferior quality products competing with theirs. It was clear from about February 2011 that the business was in trouble and would have to undergo some form of restructuring and redundancies and general discussions with trade unions began in early 2011 and there were also discussions among the directors as to what might be done.

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