Employment & Pensions Blog: Micro Focus v Mildenhall - Employment Appeal Tribunal clarifies the trigger for collective redundancy consultation

Under Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), employers must collectively consult with representatives where they are proposing to make 20 or more employees redundant from one establishment within a period of 90 days or less. 

When calculating whether they need to collectively consult, HR Professionals will be used to looking forward and backwards in time to determine whether the 90-day threshold is met. Meaning, an employer who proposed fewer than the 20 redundancies 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). 

Now, in what will be welcome news to businesses, the Employment Appeal Tribunal (EAT) has clarified that this is incorrect. The application of Section 188 is a forward looking process only, and there is no obligation to look backwards in time.  

Background

Micro Focus is a software company specialising in licencing network and security software. Mr Mildenhall was employed to run the Business Intelligence and Reporting arm of the company’s sales division from December 2015, before being made redundant in July 2022.

In September 2021, to save on costs, Micro Focus underwent a large-scale reorganisation of its support services to save costs. As part of this initiative a spreadsheet was created in January 2022 listing each employee with a proposed outcome, and after a further consultation it was decided that Mr Mildenhall’s team would be merged with the analytics team. A second spreadsheet was then created listing further redundancies, this time proposing that the Head of the Analytics team would act as head of the combined department, leaving Mr Mildenhall redundant. The decision was communicated to Mr Mildenhall in April 2022 and his last day of employment was 29 July 2022. 

The Employment Tribunal 

Mr Mildenhall brought claims of unfair dismissal and that Micro Focus had failed in their duty to collectively consult under Section 188. 

In the unfair dismissal claim, the Tribunal found in Mr Mildenhall’s favour. Holding that he should have been placed in a redundancy selection pool, the outcome of the process was pre-determined, and Mr Mildenhall wasn’t given sufficient information or the ability to respond. 

In the failure to collectively consult claim, using two company spreadsheets, the Tribunal looked backwards and forwards in time and concluded that the obligation to collectively consult had been triggered because it was proposing to make 45 people redundant in a 90 day period. These redundancies were being made across a number of group companies, and Employment Tribunal held that Micro Focus was the de facto employer of all the employees.   

The EAT

Micro Focus appealed to the EAT on a number of grounds, but were only successful on two: 

1. The Employment Tribunal had misapplied the legal test and erroneously concluded that the obligation to collectively consult had been triggered. 

The EAT agreed, holding that under Section 188, whether 20 or more redundancies were ‘proposed’ required a focus on what the employer was proposing in the future at the material time. There is no obligation to look backwards 90 days to determine whether the trigger had been met.  

However, the EAT stressed that the ‘concept of proposing’ is not limited to a single moment in time. It is not limited to a single decision or proposal: 

“An employer who proposes, say, six dismissals on Monday, seven on Tuesday and eight on Wednesday may readily be said to be “proposing” 21 redundancies that week…. But in every case it will be a question of fact for the ET to decide whether the employer was, at some stage, “proposing” the threshold number of dismissals.”  

2. The Tribunal was wrong to look at the de facto employer when assessing if the consultation threshold was met

Again, the EAT agreed. The EAT ruled that under Section 188, the duty is from employer to its employees, meaning those it has a contract of employment with. On this basis, the EAT rejected the idea that Micro Focus could be the de facto employer for all the employees across its corporate groups, the question was whether the proposed redundancies could be attributed to Micro Focus alone. 

Comment

It can be very expensive for businesses who fail in their obligation to collectively consult with appropriate representatives. At the time of writing, the protective award is up to 90 days gross pay. However, following the Employment Rights Act 2025, from 6 April 2026 this will increase to 180 days’ pay.   

Overall, the EAT’s decision in Micro Focus v Mildenhall will be welcome news to employers, and at a time where many are considering redundancy consultations given slow growth in the wider economy. The confirmation that it is only forward-looking assessment of what redundancies are proposed at the relevant time, and it isn’t calculated on a retrospective tally, certainly makes things easier and simpler for businesses. 

The EAT’s finding that ‘proposing’ isn’t a single moment or event means employers must now have contemporaneous evidence of exactly what was proposed, when, and (possibly) why those proposals changed. Without that, as per the EAT’s example (above), an employer whose redundancy plans develop or expand without a documented audit trail risks a Tribunal concluding that 20 or more redundancies were proposed from the outset, with the result that collective consultation obligations were triggered and not complied with.

If employers or employees require assistance with any redundancy or collective consultation issues, please contact a member of our Employment Team.