Where employers are proposing to make redundant 20 or more employees at one establishment within a period of 90 days, the duty to collectively consult will be triggered. Failure to comply with this obligation can lead to a protective award of up to 90 days’ gross pay for each employee (which is due to increase to 180 days in April 2026 under the Employment Rights Bill!). What then happens if an employer proposes to make 15 redundancies, and then within the same 90-day period proposes to make a further 5 people redundant? Is the duty to consult still triggered?
The EAT have clarified the position in the recent decision of Micro Focus Ltd v Mildenhall [2025] EAT 188 which has confirmed that:
Mr Mildenhall was employed by Micro Focus. In September 2021, the Respondent announced a large-scale reorganisation across its Support Operations which included the Sales Division which the Claimant worked in. During a remote call in November 2021, the Claimant was shown a spreadsheet of employee’s names against the proposed outcome (i.e. continued employment, move to another department or redundancy) and at this stage the Claimant was marked as “IN” meaning he would remain employed. Following further proposals to consolidate teams in January 2022, the Claimant’s role was identified as being at risk of redundancy and a further master spreadsheet was created in March 2022.
The Claimant was dismissed by reason of redundancy on 29 July 2022 and subsequently brought claims before the Employment Tribunal for unfair dismissal and the failure to collectively consult.
The Employment Tribunal concluded that on the balance of probabilities there had been a proposal to dismiss more than 20 employees and that therefore the duty to collectively consult had been triggered.
In reaching this decision, the Tribunal considered UQ v Marclean Technologies [2022] IRLR 548 and interpreted it to mean that employers are required to look backwards as well as forwards when considering whether the threshold to collectively consult has been met.
This interpretation meant that if an employer proposed to make less than 20 redundancies, and within the following 90 days, proposed to make a further number of redundancies which would bring the total number of proposed redundancies to 20 or more, the duty to collectively consult would be triggered and the employer would be obliged to collectively consult with both the first and second group of employees.
In addition, the Tribunal held that although the redundancies took place across the wider corporate group, the Respondent acted as the ‘de facto’ employer of all UK staff and as such all redundancies across the group would count towards the collective consultation threshold.
The Respondent appealed the Tribunal’s decision and the Employment Appeal Tribunal (“EAT”) held that the Tribunal had misinterpreted the Marclean judgment. The EAT noted that the focus of the duty to collectively consult is what the employer is “proposing” at the material time and cannot simply be triggered by the fact that an employer has proposed to make 20 or more redundancies within a 90-day period when looking backwards and forwards. The EAT noted that this is not the intention of the duty to collectively consult and recognised that sometimes, due to unforeseen circumstances, further redundancies might need to be made within a 90-day period in which an earlier tranche of redundancies was also made.
However, the EAT noted that the concept of “proposing” is not to be tied to a single moment in time and highlighted that “an employer who proposes, say six dismissals on Monday, seven on Tuesday and eight on Wednesday may readily be said to be “proposing” 21 redundancies that week”. The EAT confirmed that each case will be a question of fact for the Tribunal to decide whether the consultation threshold has been met.
The EAT also confirmed that the duty to consult is only triggered in relation to proposed redundancies of employees who have a contract of employment with the employer. As such in the context of a corporate group, only the individual employer is relevant and employees from other group companies should not be included when determining whether the threshold to collectively consult has been met.
Courtney Kidney comments:
Employers will be relieved by this decision as it confirms that you do not need to look retrospectively when considering whether the duty to consult is triggered. This is important for employers where redundancies are having to be made in separate tranches due to unforeseen circumstances.However, employers should not use this as an opportunity to stagger their redundancies so as to circumvent the duty to collectively consult and the EAT has advised Tribunals to be alert to such conduct!
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