MICRO FOCUS v MILDENHALL

Clarifying When Collective Consultation Is Triggered

The recent Employment Appeal Tribunal (EAT) decision in Micro Focus Ltd v Mildenhall provides timely clarification on when the duty to collectively consult under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) is engaged. The judgment will be of real practical interest to HR teams planning restructures, especially in group-company environments.

Background

Mr James Mildenhall worked for Micro Focus, a large international IT business, until his dismissal for redundancy in 2022. He brought claims for unfair dismissal and a protective award on the basis that Micro Focus was under a duty to collectively consult, alleging that 20 or more redundancies were being proposed within a 90‑day period.

The Employment Tribunal (ET) agreed with him—concluding that the collective consultation duty applied and awarding the maximum 90‑day protective award. It also held that the dismissal was unfair because the consultation was predetermined and the pool for selection unfairly pre‑set.

Micro Focus appealed.

The EAT’s Decision

The EAT allowed the appeal in part and provided important clarification.

1. The duty to consult is forward‑looking

The ET had relied heavily on the EU case Marclean, concluding that employers must look “backwards and forwards” across a 90‑day window to decide whether the collective consultation threshold is met.

The EAT disagreed, confirming that under UK law the duty is triggered only when an employer is proposing (i.e., contemplating going forward) to dismiss 20 or more employees at that time. It is not correct to retrospectively aggregate redundancies across a 90‑day period to manufacture a duty to consult.

2. Only employees of the same legal entity count

The EAT also confirmed that, within a corporate group, employees cannot be aggregated across different group companies to reach the 20‑employee threshold. The statutory duty is employer‑specific.
The ET had erred in treating Micro Focus as the “de facto” employer of a wider group of UK staff.

3. Unfair dismissal finding upheld

Despite overturning the findings on collective consultation, the EAT upheld the conclusion that the dismissal was unfair due to:

• failure to properly consider a fair selection pool, and

• a consultation process that appeared predetermined.

Why This Case Matters

The judgment brings welcome clarity to an area that had become muddled by differing interpretations of Marclean. Practically, it narrows the situations in which collective consultation duties arise—though employers should still proceed with care, particularly as wider legislative reforms (including those under the Employment Rights Act 2025) continue to tighten expectations around early and meaningful consultation.

Practical Tips for HR Professionals

1. Assess the “proposal” at the material time

• Look at what the organisation is proposing going forward, not what has happened or may later happen.

• Keep written records of when decisions are made, proposed or refined—these will be vital if challenged.

2. Consider the correct legal entity

• Do not aggregate employee numbers across group companies when assessing whether the 20‑employee threshold is met.

• Map out employing entities early in the restructuring process.

3. Apply a fair and genuinely open process

Even where collective consultation is not triggered, employers must ensure individual consultation is fair:

• Identify and justify the appropriate selection pool.

• Avoid predetermined decisions—engagement must be meaningful.

4. Watch for developments under the ERA 2025

From 2026‑27, reforms will tighten collective consultation rules, including increased protective awards and a new threshold test. Early planning and documentation will be even more essential.