01254 828 300 
In Micro Focus Ltd v Mr James Mildenhall the Employment Appeal Tribunal (EAT) delivered important clarification on when the duty to carry out collective redundancy consultation under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULRCA”) is triggered, and the scope of protective awards, while largely upholding the underlying unfair dismissal findings.
The claimant had been dismissed by reason of redundancy by his employer, a large international IT company, and brought claims in the Employment Tribunal for both unfair dismissal and for a protective award on the basis that the employer had failed to collectively consult when it was proposing to dismiss 20 or more employees within a 90-day period.
The Employment Tribunal concluded that the duty to consult had been engaged, including by reference to both “backwards and forwards” counting of dismissals in a 90-day period and by treating the employer as the “de facto” employer of a wider group of staff, and awarded the maximum 90-day protective award in addition to finding the dismissal unfair on procedural grounds.
On appeal the EAT allowed parts of the employer’s appeal, holding that the Employment Tribunal had erred in its interpretation of the law governing collective redundancy consultation under section 188.
The EAT clarified that the duty to consult is triggered by an employer proposing to dismiss 20 or more employees at the relevant time, focusing on the employer’s forward-looking intention, rather than by retrospectively aggregating proposed dismissals “backwards and forwards” across a 90-day period as the tribunal had done.
The judgment makes clear that Marclean (the CJEU case on which the Employment Tribunal had relied) does not alter the domestic statutory test for when the collective consultation obligation arises and does not require such retrospective counting. The EAT also confirmed that, in a corporate group context, only employees who are employed by the same legal entity count towards the 20-employee threshold; an employer cannot rely on the concept of a “de facto” employer to aggregate employees from separate legal entities for section 188 purposes. These clarifications significantly narrow the circumstances in which the collective consultation duty is engaged and will be of practical relevance to employers planning restructures.
While the EAT set aside the Employment Tribunal’s findings on the collective consultation breach and protective award (remitting those elements for reconsideration in light of the correct legal tests), it upheld the unfair dismissal finding. The EAT agreed with the tribunal that the employer had unreasonably failed to consider the appropriate redundancy pool and that the consultation with Mr Mildenhall had been inadequate and pre-determined, placing the dismissal outside the range of reasonable responses.
If you need guidance on redundancy processes or collective consultation requirements, our employment law team can help. Get in touch by emailing enquiries@backhouses.co.uk or phoning 01254 828 300.
This article was written by Gabrielle Scriven.