Micro Focus Limited v James Mildenhall

For the collective-consultation duty in section 188 of Trade Union and Labour Relations (Consolidation) Act 1992, the decisive question is whether the contractual employer was, at a material time, proposing to dismiss the statutory threshold of its own employees within 90 days. The duty is prospective. Later dismissals may support an evidential inference about an earlier proposal, but they do not automatically aggregate separate proposals by looking backwards and forwards.

A proposal need not be a single unified decision. Separate departmental decisions may amount to the employer proposing the threshold number. In an unfair-dismissal redundancy case, an employer may act outside the range of reasonable responses by failing to consider an appropriate selection pool and by consulting after the decision is effectively final without adequate information.

The claimant was dismissed for redundancy following a reorganisation of the respondent’s sales support operations. The Employment Tribunal found both that the respondent had breached its collective-consultation duty and that the dismissal was unfair. It made a maximum 90-day protective award and reduced unfair-dismissal compensation for a 35 per cent chance that a fair process would still have resulted in dismissal.

The Tribunal treated the respondent as a de facto employer of UK staff and, relying on Marclean, aggregated proposals by looking backwards and forwards across 90 days. It also found that the respondent failed to consider a pool including another employee and did not conduct meaningful individual consultation.

The respondent appealed. The central issues were the proper meaning of proposing dismissals under section 188, the identity of the relevant employer, and whether the Tribunal had erred in its findings on the protective award, selection pool and consultation.

1. Appeal allowed in part. The Tribunal’s finding of a breach of section 188 could not stand. The section asks whether the employer was, at some point, proposing future dismissals of 20 or more of its own employees within 90 days. Marclean concerned the calculation of dismissals already effected for article 1 of the Directive. It did not alter the separate requirement in article 2 that the employer contemplate collective redundancies. The Tribunal therefore erred by treating Marclean as requiring automatic backward- and forward-looking aggregation.
2. Subsequent dismissals can be powerful evidence from which a tribunal may infer that the employer had previously proposed threshold dismissals. Tribunals should scrutinise artificial batching, delay or staggering. However, section 188 cannot be satisfied merely by retrospectively counting dismissals or later proposals which were not contemplated when an earlier tranche was proposed. This construction also accords with section 188(3) of Trade Union and Labour Relations (Consolidation) Act 1992.
3. The relevant employer is the contractual employer. Within a corporate group, the duty is owed by the company employing the workers proposed to be dismissed, not by a company acting as a de facto employer. The Tribunal failed to determine how many of the relevant employees had contracts with the respondent. That error might have affected whether the threshold was met.
4. Section 188 does not require one single proposal or a centrally imposed headcount reduction. Decisions made separately by departments or managers can amount to the employer proposing dismissals, provided that the statutory numerical and temporal requirements are met.
5. The challenges to the maximum protective award and the unfair-dismissal findings failed. The Tribunal was entitled to find no mitigating genuine belief without supporting witness evidence. It correctly held that failing even to consider a pool including the other candidate, and conducting consultation only after the outcome had been decided without adequate information, fell outside the range of reasonable responses.
6. The section 188 issues were remitted to the same Tribunal. If it finds a breach, it must reassess the protected period under section 189(4).

• Employment Appeal Tribunal: Allowed the appeal on the Tribunal’s construction and application of section 188 of Trade Union and Labour Relations (Consolidation) Act 1992, and remitted those issues. Dismissed the remaining grounds.
• Employment Tribunal: Reasons sent on 3 August 2023. Found unfair dismissal and breach of section 188, awarded compensation and a 90-day protective award. It refused reconsideration in reasons sent on 4 June 2024.