Collective redundancy consultation and staggered dismissals: When is the duty triggered?

Since the decision of the Court of Justice of the European Union in UQ v Marclean Technologies SLU (Case C-300/19), there has been some confusion regarding when the requirement to collectively consult about redundancy proposals is triggered.

The requirement to collectively consult 

Under the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C) A”), collective consultation with appropriate representatives is required where an employer proposes to dismiss 20 or more employees at one establishment within a 90-day period or less.  Where 20 – 99 dismissals are proposed, the consultation period is 30 days; where 100 plus dismissals are proposed the period is 45 days.  There is also a requirement to notify the Secretary of State, with failure to do so a criminal offence.

Prior to Marclean, the duty was treated as forward looking. Indeed, under TULR(C)A no account is taken of any earlier redundancies for which consultation had already started.  Since the decision in Marclean, there has been some confusion about whether an employer was also required to look back after the event and calculate the actual number of redundancies over the 90-day period.  Therefore, an employer proposing redundancies should look both backwards and forwards from an individual dismissal to determine whether there are 20 or more proposed dismissals in the 90-day period.  If the total number amounts to 20 or more, the employer would be subject to the obligation to collectively consult.

Micro Focus Ltd v Mildenhall [2025] EAT 188 

The Claimant was employed by the Respondent, a large international IT company. The Respondent undertook a restructuring exercise, and the Claimant was dismissed by reason of redundancy in July 2022.  The Claimant brought claims of unfair dismissal and for a protective award under s.188 of TULR(C)A, alleging that the Respondent had been proposing large-scale redundancies and that his dismissal should’ve been aggregated with the other dismissals within a 90-day period, meaning the duty to collectively consult was triggered. The Claimant also alleged that his dismissal was procedurally and substantively unfair. The ET upheld all the claims. The Respondent appealed to the EAT.

EAT decision

The EAT dismissed the appeal in relation to the finding of unfair dismissal. The EAT upheld the ET’s findings that the Claimant’s dismissal was unfair due to the Respondent’s failure to adequately apply its mind to the appropriate redundancy pool and inadequate consultation with the Claimant.  

However, the EAT allowed the appeal in respect of the protective award. The EAT confirmed that the requirement under Marclean to look back after the event is only appropriate when looking back at a series of dismissals to factually determine whether a redundancy situation met the definition of a collective redundancy. It is incorrect to apply the “forward and back” methodology when determining the question of when the duty to collectively consult is triggered where there are staggered dismissals.  

The ET also fell into error in considering that the thresholds in s.188 were met because the Respondent (who was part of a group of companies) acted as the “de facto” employer for all UK staff when there was evidence that some of those individuals were or may have been employed by discrete legal entities.

The case was therefore remitted back to the ET to reconsider whether the duty to collectively consult was triggered applying the correct legal approach.

What does this mean for employers?

This decision provides much needed clarity on when the duty to collectively consult regarding redundancies is triggered. The duty is forward looking, based on the employer’s plans at the relevant time and previous redundancies do not need to be combined with later announced redundancies over a 90-day rolling period. However, the EAT cautioned that Tribunals should carefully scrutinise evidence to prevent employers from artificially batching or staggering dismissals to circumvent their obligations to collectively consult.  

Employers can take comfort from the fact they won’t face a protective award (or be criminally liable for failing to notify the Secretary of State of collective redundancies) where they genuinely believe the number of redundancies would fall below the threshold at the time the consultation obligations may have arisen. However, care should be taken to document the business case for the number of redundancies at the time the need arises. In situations where further redundancies become necessary, it would be prudent to document what has changed and why this was not in contemplation at the time the initial redundancies were proposed.