In the case of Micro-Focus Ltd v Mildenhall (Mildenhall), the Employment Appeal Tribunal (EAT) considered relevant factors when determining if collective redundancy consultation obligations have been triggered. It found that employers generally do not need to take into account past dismissals when determining if the threshold for collective consultation has been reached.
The law on collective consultation
Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (often simply referred to as TULRCA) requires an employer to collectively consult with its employees where it is proposing to dismiss 20 or more employees at one establishment within a 90-day period. The principle of collective consultation is founded in EU law via the EU Collective Redundancies Directive which is implemented in the UK via TULRCA.
The European Court of Justice’s decision in UQ v Marclean Technologies SLU (Marclean), a pre-Brexit decision, has led to several tribunals interpreting the requirement as a forward and backwards looking one: that is, that employers must look both forwards and forwards from a particular dismissal to determine whether there are 20 or more proposed dismissals in a 90-day period. This interpretation means that earlier redundancies, when aggregated with later proposals, could trigger collective consultation obligations if the relevant thresholds are met across a rolling 90-day period.
The Facts of the Mildenhall case
Mr Mildenhall was employed by Micro-Focus Ltd (an international IT company) for more than six years. In autumn 2021, Micro-Focus announced a large-scale reorganisation, and Mr Mildenhall was dismissed on the ground of redundancy. He brought claims for unfair dismissal and a protective award for failure to collectively consult under s. 188 TULRCA. In relation to the latter, he alleged that more than 20 redundancies were proposed within a 90-day period and relied on redundancies across several group companies at different points in time. When considering the s.188 claim, the Tribunal looked backwards and forwards and found that the obligation was triggered as Micro-Focus was proposing to make 45 individuals redundant within a 90-day period. Even though the redundancies were proposed across several different group companies, it found that those counted and determined that Micro-Focus was the employer. It consequently awarded Mr Mildenhall a 90-day protected award for failure to consult.
The EAT Decision
Micro-Focus appealed the Tribunal’s decision on several grounds, including that the Tribunal had misapplied the legal test which triggers an employer’s obligations under s.188 TULRCA. The EAT agreed and applied a narrow reading of Marclean. It held that the focus of s.188 is what the employer is proposing in the future at the relevant time and not how many dismissals were “effected or proposed when matters are viewed retrospectively”. Therefore, there is no requirement for employers to look backwards in determining whether its obligation to collectively consult has been triggered. The EAT did, however, emphasise that the concept of “proposing” redundancies should not be tied to a single moment in time and stated that it will be a question of fact for a tribunal to determine “whether the employer was, at some stage, “proposing” the threshold number of dismissals”. This will clearly be fact specific and will vary from case to case.
In relation to the finding that redundancies proposed across the different group entitles counted for the purposes of triggering s. 188, the EAT also disagreed and noted that that the ET had “impermissibly aggregated individuals in the group of 45 who were employed by discrete legal entities”. It emphasised that the duty is employer specific and that there must be a contractual link between the relevant employee and employer who is subject to the duty under s.188. In addition, only the employer can actually dismiss the relevant employee according to the statutory definition.
Key Takeaways for Employers
Mildenhall is the first UK appellate decision to consider the interpretation of Marclean and should provide some welcome clarification for employers on when collective consultation obligations bite. However, employers would be wise not to interpret the decision as meaning that they should simply ignore any prior redundancies when making subsequent proposals as the EAT confirmed that the concept of “proposing” is not limited to one event and will vary depending on the particular facts of a case. In view of this, Employers should ensure that contemporaneous evidence of what is being proposed, and when, is maintained to avoid a tribunal making any assumptions or conclusions regarding an employer’s proposals. This is particularly important as, under UK law, employees are eligible to receive a protective award of up to 90 days’ gross pay (increasing to 180 days from 6 April 2026) if an employer fails to meet its obligations.