In Shanahan Engineering Limited v Unite the Union the EAT have considered the special circumstances defence to a claim for a protective award for failing to consult in accordance with s. 188 TULR(C)A 1992 (collective redundancy consultation).

The EAT held that even if the defence does not apply as a total defence to the complaint, where there are some special circumstances, these can be taken in to account when determining the length of the protective award. The judgment also gives some general guidance on determining the length of a protective award.