The EAT's decision in Micro Focus Ltd v Mildenhall [2025] EAT 188

In Micro Focus Ltd v Mildenhall [2025] EAT 188, the EAT considered the effect of the CJEU decision in UQ v Marclean Technologies SLU C-300/19, [2022] IRLR 548 on the trigger for collective consultation obligations under s 188 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992). In short, s 188 requires an employer who is 'proposing to dismiss' as redundant 20 or more employees at one establishment within a period of 90 days or less, to collectively consult about the dismissals. The provisions in s 188 implement the UK's obligations under the Collective Redundancies Directive (originally Directive 75/129/EEC and now Directive 98/59/EC) (Directive).

Partially allowing the appeal, the EAT held the following.

1. The tribunal misdirected itself when interpreting Marclean as requiring an employer to "look backwards as well as forwards" for 90 days to determine if the threshold for consultation was met. The EAT clarified that Marclean only concerns the definition of 'collective redundancies' in Article 1 of the Directive and did not affect the interpretation of 'contemplating' collective redundancies under Article 2. Therefore, Marclean did not affect the interpretation of 'proposing' in the corresponding provisions of s 188. S 188 requires an examination of what the employer was 'proposing' at the relevant time which cannot be deduced simply from what happens subsequently. In particular, the EAT observed that the duty to collectively consult may apply even if fewer than 20 employees are actually dismissed.
2. The tribunal was incorrect in concluding that Micro Focus Ltd operated as the de facto employer of all UK staff. The duty to consult under s 188 is owed by the legal entity with which the individuals it proposes to dismiss have a contract of employment.

The EAT remitted the case to the tribunal to determine whether the employer was at some stage 'proposing' to dismiss 20 or more employees, with whom it had contracts of employment, within a period of 90 days.

For more on redundancy, see Redundancy, and for the Employment Rights Act 2025 changes on the collective consultation threshold, see ERA 2025: Desktop, Q&A here. 

First published on the Employment News Service on 9 January 2026

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