Proposing Is Prospective: Guidance on Collective Consultation under s.188 TULRCA 1992

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In Micro Focus Ltd v Mildenhall [2025] EAT 188 the EAT has given important guidance on what is meant by a “proposal to dismiss as redundant” 20 or more employees for the purposes of s188 TULRCA 1992. In overturning the ET’s decision, the EAT held that the tribunal erred by concluding that, based on the CJEU's decision in C-300/19 UQ v Marclean Technologies SLU [2022] IRLR 548, it could effectively ‘look backwards as well as forwards’ when determining whether 20 or more redundancies had occurred within 90 days for the purpose of triggering the duty to collectively consult.  

The EAT concluded that Marclean concerned the meaning of ‘collective redundancies’ under Article 1(1)(a) of the EU Collective Redundancies Directive and the correct method of determining whether a particular dismissal which had been “effected” formed part of the collective redundancy exercise. It did not concern when an employer is ‘proposing’ or ‘contemplating’ redundancies. The threshold of s188 is focussed upon the subjective proposals of the employer and to be assessed prospectively irrespective of how many dismissals actually later occur. Any alternate wording would in any event be incompatible with the plain words and meaning of TULRCA 1992 even on Marleasing principles. Consequently, Marclean did not affect the proper interpretation of ‘proposing’ in S.188 and the ET was wrong to conclude otherwise.  

The EAT also found that the ET had erred in aggregating the workforce of distinct legal employers by reference to MF Ltd as the “de facto employer.” The duty to consult in s.188 is owed by an employer to individuals who have a contract of employment with it. It was incumbent on the ET to confine the “proposal” to those who were employed by MF Ltd itself rather than any associated entity.  

This was the first appellate decision to consider the controversial decision of Marclean and provides welcome guidance in advance of reforms to collective consultation by way of the Employment Rights Act 2025. Chris acted for the successful employer, instructed by Trowers and Hamlins LLP.  

Judgment can be found here.