Print article
Authors
Authors
The Employment Appeal Tribunal (EAT) recently handed down judgment in Micro Focus v Mildenhall (Mildenhall), clarifying the circumstances in which employer’s collective redundancy consultation duties arise.
Background
Under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer must ‘collectively consult’ with appropriate representatives of the affected employees.
Section 188 TULRCA transposed the EU Collective Redundancies Directive (No 98/59) (the Directive) into English law. As with many transposed provisions, the interpretation of section 188 TULRCA has been subject to intense judicial scrutiny since its implementation.
Facts
Mr Mildenhall (the Claimant) was made redundant by Micro Focus (the Respondent) in July 2022 as part of a restructure of the Respondent’s wider corporate group. In total, more than 20 employees were dismissed as redundant within a 90-day period. Significantly, the redundancies were made in several tranches and affected employees employed by several distinct legal entities.
The Claimant argued that the restructure triggered the Respondent’s duty to collectively consult and, therefore, brought a claim against the Respondent for its failure to comply with section 188 TULRCA, seeking a protective award.
First instance
At first instance, the Tribunal held that the Respondent had breached its duty to collectively consult.
In the light of the decision of the European Court of Justice in UQ v Marclean Technologies (Marclean) (a persuasive, albeit non-binding, judgment for the purpose of English law), the Tribunal directed itself that an employer who proposed fewer than the threshold number of dismissals within 90 days was subject to the obligation to consult if it subsequently proposed additional dismissals within a period of 90 days (so making the total employees to be dismissed 20 or more).
The Tribunal also concluded that employees employed across a corporate group should be regarded as working at ‘one establishment’ for the purpose of s.188 TULRCA.
Appeal
On Appeal, the EAT remitted the case to the first instance Tribunal for reconsideration.
The EAT held that the first instance Tribunal had misapplied Marclean. Properly analysed, the EAT clarified that there is no requirement in English law to look backwards and forwards across the relevant period to artificially construct a threshold. Instead, the focus should be on what the employer was ‘proposing’ for the future at the ‘material time’.
The EAT also disagreed with the first instance Tribunal’s interpretation of ‘one establishment’. According to the EAT, only redundancies proposed by the same employer should be counted. Employees of other group companies, even if closely connected, are not relevant.
Implications for employers
The decision in Mildenhall provides important guidance on the meaning of the terms ‘proposed redundancies‘ and ‘one establishment’ under section 188 TULRCA. Employers will be relieved by the EAT’s strict interpretation of both terms, limiting the circumstances in which collective consultation duties may arise.
However, such relief may be short-lived in the light of the reforms proposed by the Employment Rights Act 2025 (the Act). Section 29 of the Act introduces a new collective consultation trigger, mirroring the wording of section 188 TULRCA, which omits the phrase ‘one establishment’. Subject to consultation, it appears that this new trigger will require employers to aggregate total dismissals across a corporate group. Section 29 of the Act is expected to take effect from 2027.
To discuss any of the issues raised in this article, please contact Michelmores Employment team.