FAIL TO CONSULT, PREPARE TO PAY
A look at the Swallowtail Judgement
In the recent case of Unite the Union & Others v Swallowtail Print & Secretary of State for Business and Trade HERE , an employment tribunal found that more than 20 former employees of Swallowtail Print, a Norfolk-based printing company that entered administration in 2025, were made redundant without adequate collective consultation, breaching section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992.
Regional Employment Judge Foxwell awarded claimants a full, 90‑day protective award, on the basis that there had been no (or inadequate) consultation.
The tribunal explained that protective awards are punitive and should be for the maximum period unless circumstances make it just not to do so.
In this case, the company was insolvent and had not filed a response to the claim, meaning no justification had been put forward as to why collective consultation had not taken place in accordance with section 188.
These awards will now paid by the Secretary of State for Business and Trade, as statutory guarantor for these types of payments.
The ruling highlights the risk employers face if they fail to comply with collective consultation requirements.
Employers also now face a potential maximum award up to 180 days’ pay, following changes introduced under the Employment Rights Act which took effect on 6 April this year. This substantial increase is designed to act as an additional deterrent to employers who are minded to flout their collective consultation obligations or to ‘buy off’ employees, without going through a proper consultation process.
With further changes to collective consultation thresholds expected in 2027, now is the time to ensure that your policies and procedures are in order. In particular, employers should be:
Identifying in advance any proposals that could result 20 or more redundancies at one establishment within 90 days
Seeking legal advice at the planning stage
Notifying the Redundancy Payments Service of proposals at the appropriate time (using Form HR1)
Engaging appropriate employee representatives early, sharing required information, and consulting meaningfully before decisions are taken.
Keeping clear records of proposals, timings, information provided, and consultation steps
Stress‑testing redundancy timelines and budgets to reflect potential exposure of up to 180 days’ pay per affected employee
Training managers to ensure they are aware of the requirements of the legislation and are confident conducting group and individual consultation meetings.
If you would like any guidance on the above, or assistance with training your HR and management teams, please do get in touch.
