UK: Collective Redundancy Consultation: What Triggers Obligations?
Authors: Frances Ross, Corinna Harris, and Charlotte Stern
The UK’s Employment Appeal Tribunal has clarified that collective redundancy consultation obligations are triggered by a forward-looking proposal of redundancies.
Collective redundancies occur when an employer proposes to dismiss at least 20 employees within a 90-day period for reasons unrelated to individuals. This triggers a legal duty to consult with employee representatives in good time, aiming to agree on ways to avoid redundancies, reduce numbers, and mitigate consequences.
Failure to comply with collective consultation obligations can lead to employee representatives bringing Employment Tribunal claims for ‘protective awards’ of up to 90 days’ pay per affected employee. With the implementation of the Employment Rights Act 2025, protective awards will rise to 180 days from April 2026. It is therefore crucial to determine whether the duty to consult has been triggered.
Assessing the 90-day reference period for collective consultations has been contentious. However, in the recent case of Micro Focus Ltd v Mildenhall (2025), the Employment Appeal Tribunal concluded that the correct approach to looking at whether an employer was “proposing” to make collective redundancies is to look forwards when calculating the number of redundancies actively being planned and exclude completed dismissals. It would only be relevant to look-back from a dismissal to assess whether evidentially, the proposals really had been made in the timeline suggested by the employer.
Key Action Points for Human Resources and In-house Counsel:
When planning redundancies, employers need to think through the timetabling and planning very carefully, based on forward-looking proposals. Do not fall into a trap of deliberately staggering dismissals to avoid collective consultation obligations if all of the redundancies arise out of the same reasoning or circumstances.
Begin consultation as soon as redundancies are being considered, rather than after decisions have been taken and remember that responsibility to consult falls on the actual employing entity, even if influenced by distant corporate decision-makers.
