In cases of staggered redundancy dismissals, when is an employer required to carry out collective consultation with elected employee representatives or recognised trade union representatives?
Under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992, an employer is required to undertake collective consultation where it proposes to dismiss 20 or more employees as redundant within a 90-day period at one establishment. A failure to comply with this obligation may result in an Employment Tribunal making a protective award of up to 90 days’ gross pay per affected employee. From April 2026, this maximum protective award will increase from 90 days’ pay to 180 days’ pay.
In addition, employers must notify the Secretary of State for Business and Trade by submitting an HR1 form. Failure to do so may result in prosecution and/or the imposition of a financial penalty.
In cases of staggered redundancies, the Employment Appeal Tribunal (EAT) confirmed in Micro Focus Ltd v Mildenhall [2025] that, when assessing whether the threshold of 20 or more proposed redundancies within a 90-day period is met, an employer is only required to look forward at the proposals in place at the relevant point in time. Employers are not required to aggregate past dismissals with future proposed dismissals.
The EAT also confirmed that employees employed by other group companies are not relevant for this purpose, as the obligation under section 188 applies only to employees who are employed by the dismissing employer.
While this decision will be welcomed by employers, caution is still required. Employers should clearly document the business reasons for the number of redundancies proposed at the relevant time. Where further redundancies arise later, employers must be able to demonstrate what has changed and why those additional dismissals were not reasonably contemplated at the time of the initial proposals.
Employment Tribunals are likely to scrutinise evidence carefully to ensure that employers are not artificially batching or deliberately staggering dismissals to avoid their collective consultation obligations.
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