A recent decision of the Employment Appeal Tribunal (EAT) has provided welcome clarity for employers on when collective redundancy consultation obligations arise, particularly where redundancies are implemented in stages rather than all at once.
Micro Focus Ltd v Mildenhall [2025] EAT 188
Facts of the case
In 2021 Micro Focus Ltd, a large international IT company, announced a wide‑ranging business reorganisation. This involved cost‑saving measures which resulted in redundancies across different parts of the business at different times.
Mr Mildenhall was dismissed by reason of redundancy in July 2022. He brought a claim arguing that Micro Focus had failed to comply with its obligation to collectively consult under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). He relied on evidence suggesting that at least 45 redundancies were planned within a 90‑day period at one establishment.
The employment tribunal agreed with Mr Mildenhall and upheld his claim. Relying on the 2020 European Court of Justice decision in UQ v Marclean Technologies SLU, the tribunal concluded that employers must look backwards and forwards for 90‑days from any dismissal when deciding whether collective consultation obligations are triggered. On that basis, it found that Micro Focus had breached its obligations and made a maximum protective award of 90 days’ pay to Mr Mildenhall.
Micro Focus appealed the decision.
Employment Appeal Tribunal decision
The EAT upheld the appeal and found that the employment tribunal had misinterpreted the Marclean decision. The EAT clarified that Marclean was concerned with how redundancies are counted for the purpose of deciding whether an individual dismissal formed part of a collective redundancy under EU law. It did not change the legal test for when an employer must start consulting under TULRCA.
Under UK law, the key question remains whether the employer was, at the relevant time, proposing to dismiss 20 or more employees within a 90-day period at one establishment. The EAT emphasised that this is a forward‑looking question, based on what the employer was planning at the time, rather than a retrospective exercise based on what later happened.
Importantly, the EAT confirmed that employers are not required to aggregate earlier and later dismissals simply because they happen to fall within the same 90-day window. Collective consultation obligations are triggered by a proposal to make 20 or more redundancies, not by adding up dismissals after the event. The case was remitted to the tribunal to reconsider whether the duty to collectively consult had been triggered, applying the correct legal approach.
The Birketts view
The EAT decision restores some certainty for employers following years of inconsistent tribunal decisions. It confirms that the duty to collectively consult depends on what the employer was proposing at the time, not the total number of redundancies that later occurred. Employers are not required to routinely combine separate rounds of redundancies for the purposes of collective consultation merely because they have retrospectively totalled 20 or more within 90 days. This provides welcome reassurance for employers carrying out genuinely phased or reactive redundancy exercises.
However, the EAT made it clear that this decision should not be viewed as creating a loophole and any attempts by employers to avoid their collective consultation obligations will not be tolerated. Tribunals can and will examine whether redundancies have been deliberately staggered to avoid consultation.
Employers should therefore ensure that redundancy proposals and decisions are clearly documented to demonstrate that separate redundancy exercises are not part of a single collective proposal. This is particularly important in light of the new Employment Rights Act 2025, which will double the penalty for failing to collectively consult from 90 days’ pay to 180 days’ pay per affected employee, with effect from April 2026. The enhanced award widens the scope for tribunals imposing punitive sanctions and sends a clear warning to employers who attempt to sidestep their obligations.
Key Contacts
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2026.