In the case of Micro Focus Ltd v Mildenhall, the Employment Appeal Tribunal (EAT) has considered the impact of the European Court of Justice's (ECJ) decision in UQ v Marclean Technologies SLU (Marclean) on collective consultation obligations under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).  It is a helpful reminder of employer obligations when looking to make collective redundancies.

What does s.188 of TULRCA state?

Section 188 of TULRCA provides that where an employer “is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less", it must consult on its proposal with representatives of the affected employees.  In determining how many employees an employer is proposing to dismiss as redundant, the legislation states that no account shall be taken of employees in respect of whose proposed dismissals consultation has already begun.

The Marclean case was considered to mean an employer, who was proposing 20 or more dismissals in a 90 day period, needed to look both backwards and forwards from an individual’s dismissal to see if the requisite number had been reached. 

The facts of Mildenhall 

Mr Mildenhall was made redundant on 29th July 2022. He produced a “master spreadsheet” dated March 2022 showing that at least 45 members of staff were to be made redundant, and he claimed a protective award for his employer’s failure to collectively consult.

The tribunal held that Mr Mildehall’s employer had breached its collective consultation duty because, following Marclean, it should have looked both forward and backwards for 90 days to determine whether collective consultation obligations had been triggered. The employer appealed to the EAT.

The EAT’s decision 

The EAT allowed the appeal, stating that the tribunal had misdirected itself when interpreting Marclean. It said the Marclean decision was not concerned with situations when an employer was ‘contemplating’ redundancies and should not affect the interpretation of s.188 for the following reasons:

• TULCRA defines collective redundancies by looking at whether the employer is “proposing” to dismiss 20 or more employees as redundant within 90 days.

• If the ECJ in Marclean was concerned that an employee would be denied a remedy, that reason did not apply in the UK because under TULRCA a claim may be brought not just by the claimant, but also other employees who may be affected by the proposed dismissals, which includes people who might not yet have been dismissed.

• It was not possible to construe s.188 of TULRCA other than as looking at what the employer “is proposing” at the time for the future, not focusing on events that were unforeseeable at that time.

• If the employment tribunal’s interpretation of Marclean was right, it would directly conflict with s.188(3) of TULRCA which states that “no account” shall be taken of employees in respect of whose dismissal statutory consultation has already begun.

So, what does “is proposing” mean when considering multiple redundancy dismissals?

Mildenhall clarifies that where redundancies are proposed in more than one ‘batch’, previous redundancies do not need to be added to subsequent redundancies over a 90-day rolling period to determine if the duty to collectively consult has been triggered.  This means that an employer should consider whether they are proposing to dismiss 20 or more employees in a 90-day period, and not add that to redundancies that have already been made.  There is likely to be a risk where the dismissals in the earlier batch have not actually taken effect at the time the new process commences.

Employers should be aware that the EAT highlighted that tribunals must alert to employers who may deliberately attempt to avoid collective consultation obligations with artificial divisions of batches or by deliberately delaying or staggering some dismissals.  For example, dismissing 18 employees, waiting for a period to pass and then ‘considering’ further dismissals for redundancy later down the line for a further 3 employees.  If it is found that there was an early proposal for the later dismissals to take place, this could breach the statutory requirements. 

Increase to Protective Award

Employers should also be aware that the maximum protective award that can be awarded to employees in cases where an employer fails to comply with its duties to collectively consult, increased in April 2026 from 90 days’ gross pay to 180 days’ gross pay per affected employee.  In addition to potential compensation for unfair dismissal, the financial risks of getting this wrong are therefore considerable, particularly in large-scale reorganisations.

What should we consider as a matter of good practice with regard to our collective consultation obligations?

In light of the above, it is good practice for an employer to consider the following (in addition to the usual redundancy procedure and process), setting out in an evidence trail:

• The amount of redundancies it proposes to make (and where they will be);

• The reasons for the redundancies; 

• The cost savings the redundancies are expected to achieve;

• The timeline involved for the proposed redundancies;

• Any amendments to the redundancy process (for example, that have arisen from consultations with employees);

• The potential costs involved (including with regard to the redundancy payment; payment for accrued but untaken holiday; notice pay).

Ultimately, whilst Mildenhall is useful for employers, it does not negate the need to collectively consult where there is a real proposal and requirement to make 20 plus redundancies in the relevant period.  

For advice on redundancy, we recommend that specific legal advice is sought.  For more information, please contact KKnox@ortolan.com or jjones@ortolan.com.

Useful links

For the full case transcript of Micro Focus Ltd v Mildenhall 2025 EAT 188, see here:  https://assets.publishing.serv...