Triggering collective consultation – a focus on staggered redundancies

Collective redundancies. Two words that no one wants to hear, but with increasing employment costs and higher tax burdens coupled with the ongoing adoption of AI, it feels inevitable that many businesses will be looking at potential reductions in their workforce in 2026. Recent reports indicated that headcount expectations dropped in December, based on the monthly business confidence survey carried out by the Institute of Directors. 

Under UK law, when 20 or more redundancies are proposed at a single establishment within a 90-day period, employers must carry out formal collective consultation with union or elected employee representatives of affected employees. The requirement, set out in section 188 of the Trade Union Labour Relations (Consolidation) Act 1992, is nothing new, but identifying when collective consultation is triggered and getting it right is going to be all the more important in 2026 as a result of a change under the Employment Rights Act 2025. From April this year, a failure to collectively consult could result in an award of up to 180 days’ uncapped pay per affected employee – twice the previous maximum award of 90 days’ pay. For businesses already under financial strain, the cost of getting collective consultation wrong could be crippling. For more detail on this reform and what it means for employers, take a look at our in depth review of the ERA reforms relating to collective redundancies. 

One thorny question has long troubled employers: what happens when redundancies are proposed in batches? Take, for example, an employer which proposes 15 redundancies within a 90-day period (which would not trigger collective consultation), but which subsequently proposes five additional redundancies, such that all 20 redundancies would be within a 90-day period. Is collective consultation triggered? If it is, how does the employee approach the previous batch of 15 proposed redundancies, particularly if individual consultation is being, or has already been, undertaken for those employees? Does an employer proposing redundancies have to look backwards to assess whether the current proposal has to be considered in the context of past proposals to determine if the threshold for collective consultation has been met?

The Employment Appeal Tribunal (EAT) has now provided some much-needed clarity in Micro Focus Ltd v Mildenhall.

The EAT noted that a fundamental feature of section 188 is that it looks at what the employer was proposing at the relevant time for the future, not how many dismissals were in fact effected or proposed when matters are viewed retrospectively. It observed that it cannot simply be deduced from the fact that 20 or more dismissals actually occurred within any period of 90 days that the employer, at some stage, was or must have been proposing all those dismissals. Given that the focus is what is proposed, collective consultation can be triggered even if fewer than 20 employees are actually dismissed or if the proposed dismissals do not ultimately occur within the envisaged period of 90 days or less, but within a longer period.

What this means is that an employer does not necessarily need to combine previous redundancies with a subsequent proposal to make redundancies to determine if collective consultation is triggered. It is a question of what the employer is proposing in the future at any given moment.

While that is welcome news for employers, the EAT noted that what in fact happens subsequently will often be highly relevant evidentially to what the employer was proposing in the past. A tribunal is likely to carefully scrutinise the evidence where an employer in fact dismisses 20 or more employees within a period of 90 days, but denies this was something it was at any stage proposing. The EAT noted that dismissals do not happen by accident and that tribunals should be astute to see through artificial divisions of dismissals into batches, deliberate delaying or staggering of dismissals.

An employer which proposes 19 redundancies and subsequently proposes another 19 redundancies is likely to find it difficult to convince a Tribunal that the second proposal was unforeseeable when the first proposal was made and that there was no obligation to collectively consult. To mitigate the risk of a Tribunal concluding that there has been manipulation or deliberate staggering of proposed dismissals to avoid collective consultation, an employer will need a clear explanation as to why a subsequent batch of proposed redundancies arose independently (and could not have been foreseen) from a previous batch. With penalties soon to be doubled and with a new requirement for collective consultation set to be introduced next year - where a threshold number or percentage of redundancies is proposed across multiple sites - the stakes are higher and strategic planning is essential. Clear documentation and robust reasoning will be key to defending decisions.

Need advice? We regularly assist clients with restructuring strategies and redundancy programmes. If you have questions about compliance or risk management, get in touch.