Collective Redundancy Obligations At A Glance

When an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a 90-day period, collective redundancy obligations will apply. The matters which an employer must inform and consult trade union or elected employee representatives about are detailed and prescriptive, as set out in section 188 of the Trade Union Labour Relations (Consolidation) Act 1992 (TULRCA 1992).

Failure to inform and consult properly in relation to affected employees is a costly business, with up to 180 days' gross pay per employee being payable as a protective award if an employer gets it wrong.

Three of the most important, and perhaps least understood obligations, in this area are:

• The obligation to provide for the election of employee representatives, where none are already in place.

• The duty to notify the Secretary of State in an HR1 form that a collective redundancy proposal is being made (failure to do so is a criminal offence).

• When notices of dismissal may be issued or should take effect.

Since the need to make collective redundancies will usually signal an organization under pressure, employers should take advice early on in the process, before the plans for the business have crystallized into a proposal. The legislation is drafted in such a way that once there is a firm proposal on foot, the clock is ticking in terms of whether the employer has complied with its duty to inform and consult.

What about dismissals that have already been proposed?

A recent case, Micro Focus v Mildenhall [2025] EAT 188, clarified that an employer only has a duty to inform and consult in relation to something it is 'proposing' to do in the future; it is a forward-looking duty. Contrary to a previous interpretation of the European case of Marclean, the EAT held that the employer is not required to inform and consult in respect of any dismissals taking effect in a rolling 90-day period. In other words, it is not required to look backwards, as well as forwards, when assessing which dismissals fall within its collective consultation duty.

While the MicroFocus decision provides some comfort to employers in this difficult to navigate area, it is not the end of the story. An employment tribunal will scrutinize the communications that take place internally, whether at Board or HR level, to ascertain whether two separate proposals, which each fall below the 20 threshold but which exceed it when aggregated together, were in fact engineered by the employer to look separate. This will be a factual question and one of form over substance.

Section 188(3) of TULRCA 1992 expressly provides that there is no obligation to inform and consult in respect of a batch of dismissals where collective consultation has already begun. Once 20 or more dismissals have been proposed, a subsequent proposal involving 20 or more will trigger a new duty to inform and consult in respect of the fresh batch.

Our attorneys can provide advice and guidance on:

• How to conduct a cost-effective collective redundancy exercise, including lodging the HR1, appointing appropriate representatives and anticipate workforce questions.

• How to communicate the proposal to staff, whilst having regard to the commercially sensitive context.

• How to create a consultation timeline which meets your commercial and legal objectives.